Execution Copy
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.,
DEPOSITOR
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
TRUSTEE
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
MASTER SERVICER AND SECURITIES ADMINISTRATOR
and
EMC MORTGAGE CORPORATION
SELLER AND COMPANY
------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2005
------------------------------------------------------------
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
Bear Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates
Series 2005-9
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans to Trustee......................38
Section 2.02 Acceptance of Mortgage Loans by Trustee......................40
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement and Subsequent Mortgage Loan Purchase
Agreements...................................................42
Section 2.04 Substitution of Mortgage Loans...............................43
Section 2.05 Issuance of Certificates.....................................44
Section 2.06 Representations and Warranties Concerning the Depositor......44
Section 2.07 Conveyance of Subsequent Mortgage Loans......................44
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer..............................................46
Section 3.02 REMIC-Related Covenants......................................47
Section 3.03 Monitoring of Servicers......................................47
Section 3.04 Fidelity Bond................................................48
Section 3.05 Power to Act; Procedures.....................................48
Section 3.06 Due-on-Sale Clauses; Assumption Agreements...................49
Section 3.07 Release of Mortgage Files....................................49
Section 3.08 Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee..............................50
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.......51
Section 3.10 Presentment of Claims and Collection of Proceeds.............51
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.......52
Section 3.12 Trustee to Retain Possession of Certain Insurance
Policies and Documents.......................................52
Section 3.13 Realization Upon Defaulted Mortgage Loans....................52
Section 3.14 Compensation for the Master Servicer.........................53
Section 3.15 REO Property.................................................53
Section 3.16 Annual Officer's Certificate as to Compliance................54
Section 3.17 Annual Independent Accountant's Servicing Report.............54
Section 3.18 Reports Filed with Securities and Exchange Commission........55
Section 3.19 The Company..................................................55
Section 3.20 UCC..........................................................55
Section 3.21 Optional Purchase of Defaulted Mortgage Loans................56
ARTICLE IV
ACCOUNTS
Section 4.01 Protected Accounts...........................................57
Section 4.02 Master Servicer Collection Account...........................58
Section 4.03 Permitted Withdrawals and Transfers from the Master
Servicer Collection Account..................................59
Section 4.04 Distribution Account.........................................60
Section 4.05 Permitted Withdrawals and Transfers from the
Distribution Account.........................................60
Section 4.06 Reserve Fund.................................................60
Section 4.07 Class XP Reserve Account.....................................60
Section 4.08 Cap Reserve Account..........................................60
Section 4.09 Pre-Funding Accounts and Pre-Funding Reserve Accounts........60
Section 4.10 Interest Coverage Account....................................60
ARTICLE V
CERTIFICATES
Section 5.01 Certificates.................................................63
Section 5.02 Registration of Transfer and Exchange of Certificates........69
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............72
Section 5.04 Persons Deemed Owners........................................73
Section 5.05 Transfer Restrictions on Residual Certificates...............73
Section 5.06 Restrictions on Transferability of Certificates..............74
Section 5.07 ERISA Restrictions...........................................75
Section 5.08 Rule 144A Information........................................76
ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
Section 6.01.1 Distributions on the Group I Certificates....................77
Section 6.01.2 Distributions on the Group II Certificates...................77
Section 6.02.1 Allocation of Losses and Subsequent Recoveries on the
Group I Certificates.........................................77
Section 6.02.2 Allocation of Losses and Subsequent Recoveries on the
Group II Certificates........................................82
Section 6.02.3 Cross-Collateralization......................................83
Section 6.03 Payments.....................................................84
Section 6.04 Statements to Certificateholders.............................85
Section 6.05 Monthly Advances.............................................87
Section 6.06 Compensating Interest Payments...............................87
Section 6.07 Distributions on REMIC I Regular Interests and REMIC II
Regular Interests............................................88
ARTICLE VII
THE MASTER SERVICER
Section 7.01 Liabilities of the Master Servicer...........................89
Section 7.02 Merger or Consolidation of the Master Servicer...............89
Section 7.03 Indemnification of the Trustee, the Master Servicer and
the Securities Administrator.................................89
Section 7.04 Limitations on Liability of the Master Servicer and
Others.......................................................90
Section 7.05 Master Servicer Not to Resign................................91
Section 7.06 Successor Master Servicer....................................91
Section 7.07 Sale and Assignment of Master Servicing......................91
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default............................................93
Section 8.02 Trustee to Act; Appointment of Successor.....................94
Section 8.03 Notification to Certificateholders...........................95
Section 8.04 Waiver of Defaults...........................................95
Section 8.05 List of Certificateholders...................................96
ARTICLE IX
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee............................................97
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator................................................99
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans..............................100
Section 9.04 Trustee and Securities Administrator May Own Certificates...101
Section 9.05 Trustee's and Securities Administrator's Fees and
Expenses....................................................101
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator...............................................101
Section 9.07 Insurance...................................................102
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator...............................................102
Section 9.09 Successor Trustee and Successor Securities Administrator....103
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator...............................................104
Section 9.11 Appointment of Co-Trustee or Separate Trustee...............104
Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration....................105
ARTICLE X
TERMINATION
Xxxxxxx 00.00 Xxxxxxxxxxx Xxxx Xxxxxxxxxx by EMC or its Designee or
Liquidation of the Mortgage Loans...........................108
Section 10.02 Additional Termination Requirements.........................110
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Intent of Parties...........................................112
Section 11.02 Amendment...................................................112
Section 11.03 Recordation of Agreement....................................113
Section 11.04 Limitation on Rights of Certificateholders..................113
Section 11.05 Acts of Certificateholders..................................114
Section 11.06 Governing Law...............................................115
Section 11.07 Notices.....................................................115
Section 11.08 Severability of Provisions..................................116
Section 11.09 Successors and Assigns......................................116
Section 11.10 Article and Section Headings................................116
Section 11.11 Counterparts................................................116
Section 11.12 Notice to Rating Agencies...................................116
APPENDIX
Appendix 1 - Calculation of Class Y Principal Reduction Amount
EXHIBITS
Exhibit A-1 - Form of Class I-A Certificates
Exhibit A-2 - Form of Class I-M Certificates
Exhibit A-3 - Form of Class I-B-1 Certificates and Class I-B-2
Certificates
Exhibit A-4 - Form of Class I-B-3 Certificates
Exhibit A-5-1 - Form of Class R Certificates
Exhibit A-5-2 - Form of Class R-X Certificates
Exhibit A-6 - Form of Class B-IO Certificates
Exhibit A-7 - Form of Class XP Certificates
Exhibit A-8 - Form of Class II-A Certificates
Exhibit A-9 - Form of Class II-M Certificates
Exhibit A-10 - Form of Class II-B-1, Class II-B-2 and Class II-B-3
Certificates
Exhibit A-11 - Form of Class II-B-4, Class II-B-5 and Class II-B-6
Certificates
Exhibit B - Mortgage Loan Schedule
Exhibit C - [Reserved]
Exhibit D - Request for Release of Documents
Exhibit E Form of Affidavit pursuant to Section 860E(e)(4)
Exhibit F-1 Form of Investment Letter
Exhibit F-2 Form of Rule 144A and Related Matters
Certificate
Exhibit F-3 Form of Transferor Representation Letter
Exhibit G Form of Custodial Agreement
Exhibit H-1 Countrywide Servicing Agreement
Exhibit H-2 EMC Servicing Agreement
Exhibit H-3 EverHome Servicing Agreement
Exhibit H-4 GreenPoint Servicing Agreement
Exhibit H-5 Harbourside Servicing Agreement
Exhibit H-6 HomeBanc Servicing Agreement
Exhibit H-7 National City Servicing Agreement
Exhibit H-8 PHH Servicing Agreement
Exhibit H-9 SunTrust Servicing Agreement
Exhibit H-10 Xxxxxxxxxx Servicing Agreement
Exhibit I Assignment Agreements
Exhibit J Mortgage Loan Purchase Agreement
Exhibit K Form of Subsequent Mortgage Loan Purchase Agreement
Exhibit L Form of Subsequent Transfer Instrument
Exhibit M Form of Trustee Limited Power of Attorney
28
POOLING AND SERVICING AGREEMENT
Pooling and Servicing Agreement dated as of September 1, 2005, among
Structured Asset Mortgage Investments II Inc., a Delaware corporation, as
depositor (the "Depositor"), JPMorgan Chase Bank, National Association, a
banking association organized under the laws of the United States, not in its
individual capacity but solely as trustee (the "Trustee"), Xxxxx Fargo Bank,
National Association, as master servicer (in such capacity, the "Master
Servicer") and as securities administrator (in such capacity, the "Securities
Administrator"), and EMC Mortgage Corporation, as seller (in such capacity,
the "Seller") and as company (in such capacity, the "Company").
PRELIMINARY STATEMENT
On or prior to the Closing Date or a Subsequent Transfer Date, in the
case of Subsequent Transfer Loans, the Depositor acquired the Mortgage Loans
or Subsequent Transfer Loans, as the case may be, from the Seller. On the
Closing Date, the Depositor will sell the Mortgage Loans and certain other
property to the Trust Fund and receive in consideration therefor Certificates
evidencing the entire beneficial ownership interest in the Trust Fund.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC I to be treated for federal income tax purposes as
a REMIC. On the Startup Day, the REMIC I Regular Interests will be
designated "regular interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC II to be treated for federal income tax purposes as
a REMIC. On the Startup Day, the REMIC II Regular Interests will be
designated "regular interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC III to be treated for federal income tax purposes
as a REMIC. On the Startup Day, the REMIC III Regular Interests will be
designated "regular interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC IV to be treated for federal income tax purposes as
a REMIC. On the Startup Day, the REMIC IV Regular Interests will be
designated "regular interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC V to be treated for federal income tax purposes as
a REMIC. On the Startup Day, the REMIC V Regular Interest will be designated
the "regular interest" in such REMIC.
The Class R Certificates will evidence ownership of the "residual
interest" in each of REMIC I, REMIC II, REMIC III and REMIC IV. The
Class R-X Certificates will evidence ownership of the "residual interest" in
REMIC V.
The Group I-1 Loans will have an Outstanding Principal Balance as of
the Cut-off Date, after deducting all Scheduled Principal due on or before
the Cut-off Date, of approximately $778,372,109. The Sub-Loan Group II-1
Loans will have an Outstanding Principal Balance as of the Cut-off Date,
after deducting all Scheduled Principal due on or before the Cut-off Date, of
approximately $254,137,578. The Sub-Loan Group II-2 Mortgage Loans will have
an Outstanding Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of approximately
$462,675,850. The Sub-Loan Group II-3 Mortgage Loans will have an
Outstanding Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of approximately
$177,461,224. The Sub-Loan Group II-4 Mortgage Loans will have an
Outstanding Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of approximately
$219,938,130. The Sub-Loan Group II-5 Mortgage Loans will have an
Outstanding Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of approximately
$186,809,472. The Sub-Loan Group II-6 Mortgage Loans will have an
Outstanding Principal Balance as of the Cut-off Date, after deducting all
Scheduled Principal due on or before the Cut-off Date, of approximately
$418,190,396.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator, the Seller, the
Company and the Trustee agree as follows:
ARTICLE I
Definitions
Whenever used in this Agreement, the following words and phrases,
unless otherwise expressly provided or unless the context otherwise requires,
shall have the meanings specified in this Article.
Accepted Master Servicing Practices: With respect to any Mortgage
Loan, those customary mortgage servicing practices of prudent mortgage
servicing institutions that master service mortgage loans of the same type
and quality as such Mortgage Loan in the jurisdiction where the related
Mortgaged Property is located, to the extent applicable to the Trustee or the
Master Servicer (except in its capacity as successor to a Servicer).
Account: The Master Servicer Collection Account, the Distribution
Account, the Pre-Funding Account, the Pre-Funding Reserve Account, the
Interest Coverage Account, the Protected Account, the Cap Reserve Account or
the Class XP Reserve Account, as the context may require.
Accrued Certificate Interest: For any Group II Certificate for any
Distribution Date, the interest accrued during the related Interest Accrual
Period at the applicable Pass-Through Rate on the Certificate Principal
Balance of such Group II Certificate immediately prior to such Distribution
Date, on the basis of a 360-day year consisting of twelve 30-day months, less
(i) in the case of a Group II Senior Certificate, such Group II Certificate's
share of any Net Interest Shortfall from the related Mortgage Loans and,
after the Cross-Over Date, the interest portion of any Realized Losses on the
related Mortgage Loans, in each case allocated thereto in accordance with
Section 6.02.2(g) and (ii) in the case of a Group II Subordinate Certificate,
such Certificate's share of any Net Interest Shortfall from the related
Mortgage Loans and the interest portion of any Realized Losses on the related
Mortgage Loans, in each case allocated thereto in accordance with
Section 6.02.2(g).
Affiliate: As to any Person, any other Person controlling, controlled
by or under common control with such Person. "Control" means the power to
direct the management and policies of a Person, directly or indirectly,
whether through ownership of voting securities, by contract or otherwise.
"Controlled" and "Controlling" have meanings correlative to the foregoing.
The Trustee may conclusively presume that a Person is not an Affiliate of
another Person unless a Responsible Officer of the Trustee has actual
knowledge to the contrary.
Aggregate Subordinate Optimal Principal Amount: With respect to any
Distribution Date, the sum of the Subordinate Optimal Principal Amounts for
all Sub-Loan Groups in Loan Group II for such Distribution Date.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Allocable Share: With respect to any Class of Group II Subordinate
Certificates and any Distribution Date, an amount equal to the product of (i)
the Aggregate Subordinate Optimal Principal Amount and (ii) the fraction, the
numerator of which is the Certificate Principal Balance of such Class and the
denominator of which is the aggregate Certificate Principal Balance of all
Classes of the Group II Subordinate Certificates; provided, however, that no
Class of Group II Subordinate Certificates (other than the outstanding Class
of Group II Subordinate Certificates with the lowest numerical designation)
shall be entitled on any Distribution Date to receive distributions pursuant
to clauses (ii), (iii) and (v) of the definition of Subordinate Optimal
Principal Amount unless the related Class Prepayment Distribution Trigger for
such Distribution Date has been satisfied (any amount distributable pursuant
to clauses (ii), (iii) and (v) of the definition of Subordinate Optimal
Principal Amount shall be distributed among the Classes entitled thereto, pro
rata based on their respective Certificate Principal Balances); provided,
further, that if on a Distribution Date, the Certificate Principal Balance of
any Class of Group II Subordinate Certificates for which the related
Class Prepayment Distribution Trigger has been satisfied is reduced to zero,
such Class's remaining Allocable Share shall be distributed to the remaining
Classes of Group II Subordinate Certificates sequentially beginning with the
Class with the lowest numerical designation in reduction of their respective
Certificate Principal Balances.
Applicable Credit Rating: For any long-term deposit or security, a
credit rating of AAA in the case of S&P or Aaa in the case of Moody's (or
with respect to investments in money market funds, a credit rating of "AAAm"
or "AAAm-G" in the case of S&P and the highest rating given by Moody's for
money market funds in the case of Moody's). For any short-term deposit or
security, or a rating of A-l+ in the case of S&P or Prime-1 in the case of
Moody's.
Applicable State Law: For purposes of Section 9.12(d), the Applicable
State Law shall be (a) the law of the State of New York and (b) such other
state law whose applicability shall have been brought to the attention of the
Securities Administrator and the Trustee by either (i) an Opinion of Counsel
reasonably acceptable to the Securities Administrator and the Trustee
delivered to it by the Master Servicer or the Depositor, or (ii) written
notice from the appropriate taxing authority as to the applicability of such
state law.
Applied Realized Loss Amount: With respect to any Distribution Date
and a Class of Group I Offered Certificates, the sum of the Realized Losses
with respect to the Group I Mortgage Loans, which are to be applied in
reduction of the Certificate Principal Balance of such Class of Group I
Offered Certificates pursuant to this Agreement in an amount equal to the
amount, if any, by which, (i) the aggregate Certificate Principal Balance of
all of the Group I Certificates (after all distributions of principal on such
Distribution Date) exceeds (ii) the aggregate Stated Principal Balance of all
of the Group I Mortgage Loans for such Distribution Date. The Applied
Realized Loss Amount shall be allocated first to the Class I-B-3
Certificates, the Class I-B-2 Certificates, the Class I-B-1 Certificates, the
Class I-M-2 Certificates and the Class I-M-1 Certificates, in that order (so
long as their respective Certificate Principal Balances have not been reduced
to zero), and thereafter the Applied Realized Loss Amount with respect to the
Group I Mortgage Loans shall be allocated first to the Class I-1A-2
Certificates and then to the Class I-1A-1 Certificates, until the Certificate
Principal Balance of each such Class has been reduced to zero.
Appraised Value: For any Mortgaged Property related to a Mortgage
Loan, the amount set forth as the appraised value of such Mortgaged Property
in an appraisal made for the mortgage originator in connection with its
origination of the related Mortgage Loan.
Assignment Agreements: The agreements attached hereto as Exhibit I,
whereby the Servicing Agreements were assigned to the Trustee for the benefit
of the Certificateholders.
Assumed Final Distribution Date: With respect to the Group I
Certificates, the Distribution Date occurring in November, 2035, and with
respect to the Group II Certificates, the Distribution Date occurring in
November, 2035, or, in each case, if such day is not a Business Day, the next
succeeding Business Day.
Available Funds: With respect to any Distribution Date and each
Sub-Loan Group in Loan Group II, an amount equal to the aggregate of the
following amounts with respect to the Group II Mortgage Loans in the related
Sub-Loan Group: (a) all previously undistributed payments on account of
principal (including the principal portion of Scheduled Payments, Principal
Prepayments and the principal portion of Net Liquidation Proceeds) and all
previously undistributed payments on account of interest received after the
Cut-off Date or Subsequent Cut-Off Date, as the case may be, and on or prior
to the related Determination Date, (b) any Monthly Advances and Compensating
Interest Payments by the Servicer or the Master Servicer with respect to such
Distribution Date, (c) any reimbursed amount in connection with losses on
investments of deposits in certain eligible investments in respect of the
Group II Mortgage Loans in the related Sub-Loan Group, (d) any amount
allocated from the Available Funds of another Sub-Loan Group in accordance
with Section 6.01.2(a)(I), (e) any Remaining Pre-Funding Amount with respect
to such Sub-Loan Group withdrawn from the Pre-Funding Reserve Account
pursuant to Section 4.09(e)(ii) herein, and (f) any amounts withdrawn from
the Pre-Funding Reserve Account in respect of such Sub-Loan Group pursuant to
Section 4.09(e)(iii) herein, except:
(i) all payments that were due on or before the Cut-off Date or Subsequent
Cut-Off Date, as the case may be;
(ii) all Principal Prepayments and Liquidation Proceeds received after the
applicable Prepayment Period;
(iii) all payments, other than Principal Prepayments, that represent early
receipt of Scheduled Payments due on a date or dates subsequent to the
related Due Date;
(iv) amounts received on particular Mortgage Loans as late payments of
principal or interest and respecting which, and to the extent that, there are
any unreimbursed Monthly Advances;
(v) amounts representing Monthly Advances determined to be Nonrecoverable
Advances;
(vi) any investment earnings on amounts on deposit in the Master Servicer
Collection Account and the Distribution Account and amounts permitted to be
withdrawn from the Master Servicer Collection Account and the Distribution
Account pursuant to this Agreement;
(vii) amounts needed to pay the Servicing Fees or to reimburse any Servicer
or the Master Servicer for amounts due under the Servicing Agreement and the
Agreement to the extent such amounts have not been retained by, or paid
previously to, such Servicer or the Master Servicer;
(viii) amounts applied to pay any fees with respect to any lender-paid
primary mortgage insurance policy; and
(ix) any expenses or other amounts reimbursable to the Trustee, the
Securities Administrator, the Master Servicer and the Custodian pursuant to
Section 7.04(c) or Section 9.05.
Average Loss Severity Percentage: With respect to any Distribution
Date and each Sub-Loan Group in Group II, the percentage equivalent of a
fraction, the numerator of which is the sum of the Loss Severity Percentages
for each Group II Mortgage Loan in such Sub-Loan Group that had a Realized
Loss and the denominator of which is the number of Group II Mortgage Loans in
the related Sub-Loan Group that had Realized Losses.
Bankruptcy Code: The United States Bankruptcy Code, as amended as
codified in 11 U.S.C. §§ 101-1330.
Bankruptcy Loss: With respect to any Mortgage Loan, any Deficient
Valuation or Debt Service Reduction related to such Mortgage Loan as reported
by the Servicer to the Master Servicer.
Basis Risk Shortfall: With respect to any Distribution Date and each
Class of Group I Offered Certificates for which the Pass-Through Rate is
based upon the Net Rate Cap, the excess, if any, of (a) the amount of Current
Interest that such Class would have been entitled to receive on such
Distribution Date had the applicable Pass-Though Rate been calculated at a
per annum rate equal to the lesser of (i) One-Month LIBOR plus the related
Margin and (ii) 11.50% over (b) the amount of Current Interest on such Class
of Offered Certificates calculated using a Pass-Though Rate equal to the Net
Rate Cap for such Distribution Date.
Basis Risk Shortfall Carry Forward Amount: With respect to any
Distribution Date and each Class of Group I Offered Certificates, the sum of
the Basis Risk Shortfall for such Distribution Date and the Basis Risk
Shortfall for all previous Distribution Dates not previously paid from any
source including Excess Cashflow and payments under the Cap Contracts,
together with interest thereon at a rate equal to the lesser of (i) One-Month
LIBOR plus the related Margin and (ii) 11.50%, for such Distribution Date.
Book-Entry Certificates: Initially, the Senior Certificates and
Offered Subordinate Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which the New York Stock Exchange or Federal Reserve is closed or on
which banking institutions in the jurisdiction in which the Trustee, the
Master Servicer, Custodian, any Servicer or the Securities Administrator are
authorized or obligated by law or executive order to be closed.
Cap Contract: With respect to any of the Class I-1A-1, Class I-1A-2,
Class I-M-1, Class I-M-2, Class I-B-1, Class I-B-2 or Class I-B-3
Certificates, the respective cap contracts, dated as of September 30, 2005,
between the Trustee, on behalf of the Trust for the benefit of the Class
I-1A-1, Class I-1A-2, Class I-M-1, Class I-M-2, Class I-B-1, Class I-B-2 or
Class I-B-3 Certificateholders, as the case may be, and the Counterparty.
Cap Contract Payment Amount: With respect to any Distribution Date and
a Cap Contract, the amounts received from such Cap Contract, if any, on such
Distribution Date.
Cap Reserve Account: The trust account or accounts created and
maintained by the Securities Administrator pursuant to Section 4.08 hereof,
which shall be denominated "JPMorgan Chase Bank, National Association, as
Trustee f/b/o holders of Structured Asset Mortgage Investments II Inc., Bear
Xxxxxxx ALT-A Trust 2005-9, Mortgage Pass-Through Certificates, Series 2005-9
- Cap Reserve Account." For purposes of the REMIC Provisions, the Cap
Reserve Account will be an outside reserve fund. For federal income tax
purposes, the Class B-IO Certificateholder shall be treated as the owner of
the Cap Reserve Account and shall include any investment earnings on the Cap
Reserve Account in income for such purposes. Any amounts distributed to the
Cap Reserve Account from any REMIC created hereunder shall be treated as
having been distributed to the Class B-IO Certificateholder from such REMIC.
Certificate: Any mortgage pass-through certificate evidencing a
beneficial ownership interest in the Trust Fund signed and countersigned by
the Securities Administrator in substantially the forms annexed hereto as
Exhibits X-0, X-0, X-0, X-0, X-0-0, X-0-0, X-0, X-0, X-0, X-0, X-00 and A-11
with the blanks therein appropriately completed.
Certificate Group: With respect to the Group I Certificates, the Class
I-1A-1 Certificates and the Class I-1A-2 Certificates. With respect to the
Group II Certificates and (ii) Sub-Loan Group II-1, the Class II-1A-1
Certificates and Class II-1A-2 Certificates, (ii) Sub-Loan Group II-2, the
Class II-2A-1 Certificates, (iii) Sub-Loan Group II-3, the Class II-3A-1
Certificates and the Class II-3A-2 Certificates, (iv) Sub-Loan Group II-4,
the Class II-4A-1 Certificates, (v) Sub-Loan Group II-5, the Class II-5A-1
Certificates and the Class II-5A-2 Certificates, and (vi) Sub-Loan Group
II-6, the Class II-6A-1 Certificates and the Class II-6A-2 Certificates.
Certificate Owner: Any Person who is the beneficial owner of a
Certificate registered in the name of the Depository or its nominee.
Certificate Principal Balance: With respect to any Certificate (other
than the Class B-IO, Class R or Class R-X Certificates) as of any
Distribution Date, the initial principal amount of such Certificate plus, in
the case of a Subordinate Certificates, any Subsequent Recoveries added to
the Certificate Principal Balance of such Certificates pursuant to Section
6.02.1(b) or Section 6.02.2(h) hereof, and reduced by (i) all amounts
distributed on previous Distribution Dates on such Certificate with respect
to principal, (ii) solely in the case of the Group II Certificates, the
principal portion of all Realized Losses (other than Realized Losses
resulting from Debt Service Reductions) allocated prior to such Distribution
Date to such Certificate, taking account of the applicable Loss Allocation
Limitation, (iii) solely in the case of the Group I Certificates, any Applied
Realized Loss Amounts allocated to such Class on previous Distribution Dates,
and (iv) in the case of a Group II Subordinate Certificate, such
Certificate's pro rata share, if any, of the applicable Subordinate
Certificate Writedown Amount for previous Distribution Dates. With respect
to any Class of Certificates, the Certificate Principal Balance thereof will
equal the sum of the Certificate Principal Balances of all Certificates in
such Class. The initial Certificate Principal Balance (if any) for each
Class of Certificates is set forth in Section 5.01(c)(iv).
Certificate Register: The register maintained pursuant to
Section 5.02.
Certificateholder: A Holder of a Certificate.
Class: With respect to the Certificates, any of Class I-1A-1, Class
I-1A-2, Class II-1A-1, Class II-1A-2, Class II-2A-1, Class II-3A-1, Class
II-3A-2, Class II-4A-1, Class II-5A-1, Class II-5A-2, Class II-6A-1, Class
II-6A-2, Class I-M-1, Class I-M-2, Class II-M-1, Class II-M-2, Class II-M-3,
Class II-M-4, Class II-M-5, Class R, Class R-X, Class I-B-1, Class I-B-2,
Class I-B-3, Class II-B-1, Class II-B-2, Class II-B-3, Class II-B-4, Class
II-B-5, Class II-B-6, Class B-IO and Class XP Certificates.
Class A Certificates: The Class I-A Certificates and the Class II-A
Certificates.
Class B Certificates: The Class I-B Certificates and the Class II-B
Certificates.
Class B-IO Advances: As defined in Section 6.01.1(b).
Class B-IO Distribution Amount: With respect to any Distribution Date,
the Current Interest for the Class B-IO Certificates for such Distribution
Date (which shall be deemed distributable with respect to the REMIC IV
Regular Interest B-IO-I); provided, however, that on and after the
Distribution Date on which the aggregate Certificate Principal Balance of the
Group I Certificates has been reduced to zero, the Class B-IO Distribution
Amount shall include the Overcollateralization Amount (which shall be deemed
distributable, first, with respect to the REMIC IV Regular Interest B-IO-I in
respect of accrued and unpaid interest thereon until such accrued and unpaid
interest shall have been reduced to zero and, thereafter, with respect to the
REMIC IV Regular Interest B-IO-P in respect of the principal balance thereof).
Class B-IO Pass-Through Rate: With respect to the Class B-IO
Certificates and any Distribution Date or the REMIC IV Regular Interest
B-IO-I, a per annum rate equal to the percentage equivalent of a fraction,
the numerator of which is the sum of the amounts calculated pursuant to
clauses (1) through (8) below, and the denominator of which is the aggregate
principal balance of the REMIC II Regular Interests. For purposes of
calculating the Pass-Through Rate for the Class B-IO-I Certificates, the
numerator is equal to the sum of the following components:
1. the Uncertificated Pass-Through Rate for REMIC III Regular Interest LT1
minus the Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC III Regular Interest LT1;
2. the Uncertificated Pass-Through Rate for REMIC III Regular Interest LT2
minus the Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC III Regular Interest LT2;
3. the Uncertificated Pass-Through Rate for REMIC III Regular Interest LT4
minus twice the Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC III Regular Interest LT4.
4. the Uncertificated Pass-Through Rate for REMIC III Regular Interest
LTY-I-1 minus the Marker Rate, applied to a notional amount equal to
the Uncertificated Principal Balance of REMIC III Regular Interest
LTY-I-1;
5. the Uncertificated Pass-Through Rate for REMIC III Regular Interest LT5
minus the Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC III Regular Interest LT5;
6. the Uncertificated Pass-Through Rate for REMIC III Regular Interest LT6
minus the Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC III Regular Interest LT6;
7. the Uncertificated Pass-Through Rate for REMIC III Regular Interest LT8
minus twice the Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC III Regular Interest LT8; and
8. the Uncertificated Pass-Through Rate for REMIC III Regular Interest
LTY-I-2 minus the Marker Rate, applied to a notional amount equal to
the Uncertificated Principal Balance of REMIC III Regular Interest
LTY-I-2.
Class I-A Certificates: The Class I-1A-1 Certificates and Class I-1A-2
Certificates.
Class I-A Principal Distribution Amount: For any Distribution Date, an
amount equal to the excess, if any, of (i) the Certificate Principal Balance
of the Class I-A Certificates immediately prior to such Distribution Date
over (ii) the excess of (a) the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date over (b) the product of (1)
the aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date and (2) the sum of (x) 17.20% and (y) the Current Specified
Overcollateralization Percentage for such Distribution Date.
Class I-B Certificates: The Class I-B-1, the Class I-B-2 and the Class
I-B-3 Certificates.
Class I-B-1 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the Certificate Principal
Balance of the Class I-B-1 Certificates immediately prior to such
Distribution Date over (ii) the excess of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over (b) the
sum of (1) the Certificate Principal Balance of the Class I-A Certificates
(after taking into account the payment of the Class I-A Principal
Distribution Amount on such Distribution Date), (2) the Certificate Principal
Balance of the Class I-M-1 Certificates (after taking into account the
payment of the Class I-M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class I-M-2 Certificates
(after taking into account the payment of the Class I-M-2 Principal
Distribution Amount on such Distribution Date) and (4) the product of (x) the
aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date and (y) the sum of 2.60% and the Current Specified
Overcollateralization Percentage for such Distribution Date.
Class I-B-2 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the Certificate Principal
Balance of the Class I-B-2 Certificates immediately prior to such
Distribution Date over (ii) the excess of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over (b) the
sum of (1) the Certificate Principal Balance of the Class I-A Certificates
(after taking into account the payment of the Class I-A Principal
Distribution Amount on such Distribution Date), (2) the Certificate Principal
Balance of the Class I-M-1 Certificates (after taking into account the
payment of the Class I-M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class I-M-2 Certificates
(after taking into account the payment of the Class I-M-2 Principal
Distribution Amount on such Distribution Date), (4) the Certificate Principal
Balance of the Class I-B-1 Certificates (after taking into account the
payment of the Class I-B-1 Principal Distribution Amount on such Distribution
Date), and (5) the product of (x) the aggregate Stated Principal Balance of
the Group I Mortgage Loans for such Distribution Date and (y) the sum of
1.60% and the Current Specified Overcollateralization Percentage for such
Distribution Date.
Class I-B-3 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the Certificate Principal
Balance of the Class I-B-3 Certificates immediately prior to such
Distribution Date over (ii) the excess of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over (b) the
sum of (1) the Certificate Principal Balance of the Class I-A Certificates
(after taking into account the payment of the Class I-A Principal
Distribution Amount on such Distribution Date), (2) the Certificate Principal
Balance of the Class I-M-1 Certificates (after taking into account the
payment of the Class I-M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class I-M-2 Certificates
(after taking into account the payment of the Class I-M-2 Principal
Distribution Amount on such Distribution Date), (4) the Certificate Principal
Balance of the Class I-B-1 Certificates (after taking into account the
payment of the Class I-B-1 Principal Distribution Amount on such Distribution
Date), (5) the Certificate Principal Balance of the Class I-B-2 Certificates
(after taking into account the payment of the Class I-B-2 Principal
Distribution Amount on such Distribution Date), and (6) the product of (x)
the aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date and (y) the Current Specified Overcollateralization
Percentage for such Distribution Date.
Class I-M Certificates: The Class I-M-1 Certificates and the Class
I-M-2 Certificates.
Class I-M-1 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the Certificate Principal
Balance of the Class I-M-1 Certificates immediately prior to such
Distribution Date over (ii) the excess of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over (b) the
sum of (1) the Certificate Principal Balance of the Class I-A Certificates
(after taking into account the payment of the Class I-A Principal
Distribution Amount on such Distribution Date) and (2) the product of (x) the
aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date and (y) the sum of (I) 9.30% and (II) the Current Specified
Overcollateralization Percentage for such Distribution Date.
Class I-M-2 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the Certificate Principal
Balance of the Class I-M-2 Certificates immediately prior to such
Distribution Date over (ii) the excess of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over (b) the
sum of (1) the Certificate Principal Balance of the Class I-A Certificates
(after taking into account the payment of the Class I-A Principal
Distribution Amount on such Distribution Date), (2) the Certificate Principal
Balance of the Class I-M-1 Certificates (after taking into account the
payment of the Class I-M-1 Principal Distribution Amount on such Distribution
Date) and (3) the product of (x) the aggregate Stated Principal Balance of
the Group I Mortgage Loans for such Distribution Date and (y) the sum of (I)
4.90% and (II) the Current Specified Overcollateralization Percentage for
such Distribution Date.
Class II-A Certificates: The Class II-1A-1, Class II-1A-2, Class
II-2A-1, Class II-3A-1, Class II-3A-2, Class II-4A-1, Class II-5A-1, Class
II-5A-2, Class II-6A-1 and Class II-6A-2 Certificates.
Class II-B Certificates: The Class II-B-1, Class II-B-2, Class II-B-3,
Class II-B-4, Class II-B-5 and Class II-B-6 Certificates.
Class II-M Certificates: The Class II-M-1, Class II-M-2, Class II-M-3,
Class II-M-4 and Class II-M-5 Certificates.
Class M Certificates: The Class I-M Certificates and the Class II-M
Certificates.
Class Prepayment Distribution Trigger: For a Class of Group II
Subordinate Certificates for any Distribution Date, the Class Prepayment
Distribution Trigger is satisfied if the fraction (expressed as a
percentage), the numerator of which is the aggregate Certificate Principal
Balance of such Class and each Class of Group II Subordinate Certificates
subordinate thereto, if any, and the denominator of which is the Stated
Principal Balance of all of the Group II Mortgage Loans as of the related Due
Date, equals or exceeds such percentage calculated as of the Closing Date.
Class R Certificate: Any of the Class R Certificates substantially in
the form annexed hereto as Exhibit A-5-1 and evidencing ownership of
interests designated as "residual interests" in REMIC I, REMIC II, REMIC III
and REMIC IV for purposes of the REMIC Provisions. Component I of the Class
R Certificates is designated as the sole class of "residual interest" in
REMIC I, Component II of the Class R Certificates is designated as the sole
class of "residual interest" in REMIC II, Component III of the Class R
Certificates is designated as the sole class of "residual interest" in
REMIC III and Component IV of the Class R Certificates is designated as the
sole class of "residual interest" in REMIC IV.
Class R-X Certificates: Any of the Class R-X Certificates
substantially in the form annexed hereto as Exhibit A-5-2 and evidencing
ownership of the "residual interest" in REMIC V for purposes of the REMIC
Provisions.
Class XP Reserve Account: The account established and maintained by
the Master Servicer pursuant to Section 4.07 hereof.
Class Y Principal Reduction Amounts: For any Distribution Date, the
amounts by which the Uncertificated Principal Balances of the Class Y Regular
Interests will be reduced on such Distribution Date by the allocation of
Realized Losses and the distribution of principal, determined as described in
Appendix I
Class Y Regular Interests: The Class Y-1, Class Y-2, Class Y-3, Class
Y-4, Class Y-5 and Class Y-6 Regular Interests.
Class Y-1 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-1 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-1 Regular Interest on such Distribution Date.
Class Y-1 Principal Reduction Amount: The Class Y Principal Reduction
Amount for the Class Y-1 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Y-1 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Y-2 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-2 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-2 Regular Interest on such Distribution Date.
Class Y-2 Principal Reduction Amount: The Class Y Principal Reduction
Amount for the Class Y-2 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Y-2 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Y-3 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-3 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-3 Regular Interest on such Distribution Date.
Class Y-3 Principal Reduction Amount: The Class Y Principal Reduction
Amount for the Class Y-3 Regular Interest as determined pursuant to the
provisions of the Appendix 1.
Class Y-3 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Y-4 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-4 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-1 Regular Interest on such Distribution Date.
Class Y-4 Principal Reduction Amount : The Class Y Principal Reduction
Amount for the Class Y-4 Regular Interest as determined pursuant to the
provisions of the Appendix 1.
Class Y-4 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Y-5 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-5 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-5 Regular Interest on such Distribution Date.
Class Y-5 Principal Reduction Amount: The Class Y Principal Reduction
Amount for the Class Y-5 Regular Interest as determined pursuant to the
provisions of the Appendix 1.
Class Y-5 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Y-6 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-6 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-6 Regular Interest on such Distribution Date.
Class Y-6 Principal Reduction Amount : The Class Y Principal Reduction
Amount for the Class Y-6 Regular Interest as determined pursuant to the
provisions of the Appendix 1.
Class Y-6 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z Principal Reduction Amounts: For any Distribution Date, the
amounts by which the Uncertificated Principal Balances of the Class Z Regular
Interests will be reduced on such Distribution Date by the allocation of
Realized Losses and the distribution of principal, which shall be in each
case the excess of (A) the sum of (x) the excess of the REMIC I Available
Distribution Amount for the related Group (i.e. the "related Group" for the
Class Z-1 Regular Interest is the Sub-Loan Group II-1 Loans, the "related
Group" for the Class Z-2 Regular Interest is the Sub-Loan Group II-2 Loans,
the "related Group" for the Class Z-3 Regular Interest is the Sub-Loan Group
II-3 Loans, the "related Group" for the Class Z-4 Regular Interest is the
Sub-Loan Group II-4 Loans, the "related Group" for the Class Z-5 Regular
Interest is the Sub-Loan Group II-5 Loans and the "related Group" for the
Class Z-6 Regular Interest is the Sub-Loan Group II-6 Loans) over the sum of
the amounts thereof distributable (i) in respect of interest on such Class Z
Regular Interest and the related Class Y Regular Interest, (ii) to such Class
Z Regular Interest and the related Class Y Regular Interest pursuant to
clause (c)(ii) of the definition of "REMIC I Distribution Amount" and (iii)
in the case of the Group I Loans, to the Class R Certificates and (y) the
amount of Realized Losses allocable to principal for the related Group over
(B) the Class Y Principal Reduction Amount for the related Group.
Class Z Regular Interests: The Class Z-1, Class Z-2, Class Z-3, Class
Z-4, Class Z-5 and Class Z-6 Regular Interests.
Class Z-1 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Z-1 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-1 Regular Interest on such Distribution Date.
Class Z-1 Principal Reduction Amount: The Class Z Principal Reduction
Amount for the Class Z-1 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-1 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z-2 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Z-2 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-2 Regular Interest on such Distribution Date.
Class Z-2 Principal Reduction Amount: The Class Z Principal Reduction
Amount for the Class Z-2 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-2 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z-3 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Z-3 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-3 Regular Interest on such Distribution Date.
Class Z-3 Principal Reduction Amount: The Class Z Principal Reduction
Amount for the Class Z-3 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-3 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z-4 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Z-4 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-4 Regular Interest on such Distribution Date.
Class Z-4 Principal Reduction Amount: The Class Z Principal Reduction
Amount for the Class Z-4 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-4 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z-5 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Z-5 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-5 Regular Interest on such Distribution Date.
Class Z-5 Principal Reduction Amount: The Class Z Principal Reduction
Amount for the Class Z-5 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-5 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z-6 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Z-6 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-6 Regular Interest on such Distribution Date.
Class Z-6 Principal Reduction Amount: The Class Z Principal Reduction
Amount for the Class Z-6 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-6 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Closing Date: September 30, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Company: EMC.
Compensating Interest Payment: As defined in Section 6.06.
Corporate Trust Office: The designated office of the Trustee or
Securities Administrator, as applicable, where at any particular time its
respective corporate trust business with respect to this Agreement shall be
administered. The Corporate Trust Office of the Trustee at the date of the
execution of this Agreement is located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Worldwide Securities Services-Global Debt,
Bear Xxxxxxx ALT-A Trust 2005-9. The Corporate Trust Office of the
Securities Administrator at the date of the execution of this Agreement is
located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Group, BSALTA 2005-9. For the purpose of registration and
transfer and exchange only, the Corporate Trust Office of the Securities
Administrator shall be located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Group, BSALTA 2005-9.
Counterparty: Xxxxx Fargo Bank, National Association, and any
successor thereto, or any successor counterparty under the Cap Contracts.
Countrywide: Countrywide Home Loans Servicing LP, and its successor in
interest.
Countrywide Servicing Agreement: The Seller's Warranties and Servicing
Agreement, dated as of September 1, 2002, as amended, between Countrywide
Servicing and EMC attached hereto as Exhibit H-1.
Cross-Over Date: The first Distribution Date on which the aggregate
Certificate Principal Balance of the Group II Subordinate Certificates has
been reduced to zero.
Current Interest: As of any Distribution Date, with respect to each
Class of Group I Offered Certificates, (i) the interest accrued on the
Certificate Principal Balance during the related Interest Accrual Period at
the applicable Pass-Through Rate plus any amount previously distributed with
respect to interest for such Certificate that has been recovered as a
voidable preference by a trustee in bankruptcy minus (ii) the sum of (a) any
Prepayment Interest Shortfall for such Distribution Date, to the extent not
covered by Compensating Interest Payments and (b) any shortfalls resulting
from the application of the Relief Act during the related Due Period;
provided, however, that for purposes of calculating Current Interest for any
such Class, amounts specified in clauses (ii)(a) and (ii)(b) hereof for any
such Distribution Date shall be allocated first to the Class B-IO
Certificates and the Class R Certificates in reduction of amounts otherwise
distributable to such Certificates on such Distribution Date and then any
excess shall be allocated to each other Class of Certificates pro rata based
on the respective amounts of interest accrued pursuant to clause (i) hereof
for each such Class on such Distribution Date.
Current Specified Enhancement Percentage: For any Distribution Date, a
percentage obtained by dividing (x) the sum of (i) the aggregate Certificate
Principal Balance of the Group I Subordinate Certificates and (ii) the
Overcollateralization Amount, in each case prior to the distribution of the
Principal Distribution Amount on such Distribution Date, by (y) the aggregate
Stated Principal Balance of the Group I Mortgage Loans as of the end of the
related Due Period.
Current Specified Overcollateralization Percentage: For any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is the Overcollateralization Target Amount, and the denominator of
which is the aggregate Stated Principal Balance of the Group I Mortgage Loans
for such Distribution Date.
Custodial Agreement: An agreement, dated as of the Closing Date among
the Depositor, the Master Servicer, the Trustee and the Custodian in
substantially the form of Exhibit G hereto.
Custodian: Xxxxx Fargo Bank, National Association, or any successor
custodian appointed pursuant to the provisions hereof and of the Custodial
Agreement.
Cut-off Date: September 1, 2005.
Cut-off Date Balance: Approximately $2,497,584,757.
Debt Service Reduction: Any reduction of the Scheduled Payments which
a Mortgagor is obligated to pay with respect to a Mortgage Loan as a result
of any proceeding under the Bankruptcy Code or any other similar state law or
other proceeding.
Deficient Valuation: With respect to any Mortgage Loan, a valuation of
the Mortgaged Property by a court of competent jurisdiction in an amount less
than the then outstanding indebtedness under the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code or
any other similar state law or other proceeding.
Delinquent: A Mortgage Loan is "Delinquent" if any payment due thereon
is not made pursuant to the terms of such Mortgage Loan by the close of
business on the day such payment is scheduled to be due. A Mortgage Loan is
"30 days delinquent" if such payment has not been received by the close of
business on the last day of the month immediately succeeding the month in
which such payment was due. For example, a Mortgage Loan with a payment due
on December 1 that remained unpaid as of the close of business on January 31
would then be considered to be 30 to 59 days delinquent. Similarly for "60
days delinquent," "90 days delinquent" and so on.
Depositor: Structured Asset Mortgage Investments II Inc., a Delaware
corporation, or its successors in interest.
Depository: The Depository Trust Company, the nominee of which is Cede
& Co., or any successor thereto.
Depository Agreement: The meaning specified in Section 5.01(a) hereof.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution
(commercial bank, federal savings bank, mutual savings bank or savings and
loan association) or trust company (which may include the Trustee), the
deposits of which are fully insured by the FDIC to the extent provided by law.
Determination Date: With respect to each Mortgage Loan, the
Determination Date as defined in the Servicing Agreement.
Disqualified Organization: Any of the following: (i) the United
States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the Xxxxxxx Mac or any
successor thereto, a majority of its board of directors is not selected by
such governmental unit), (ii) any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing,
(iii) any organization (other than certain farmers' cooperatives described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income), (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code or (v) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding
of an ownership interest in a Residual Certificate by such Person may cause
any 2005-9 REMIC contained in the Trust or any Person having an ownership
interest in the Residual Certificate (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise
be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
Distribution Account: The trust account or accounts created and
maintained by the Securities Administrator pursuant to Section 4.04, which
shall be denominated "JPMorgan Chase Bank, National Association, as Trustee
f/b/o holders of Structured Asset Mortgage Investments II Inc., Bear Xxxxxxx
ALT-A Trust 2005-9, Mortgage Pass-Through Certificates, Series 2005-9 -
Distribution Account." The Distribution Account shall be an Eligible Account.
Distribution Account Deposit Date: The Business Day prior to each
Distribution Date.
Distribution Date: The 25th day of any month, beginning in the month
immediately following the month of the Closing Date, or, if such 25th day is
not a Business Day, the Business Day immediately following.
DTC Custodian: Xxxxx Fargo Bank, National Association, or its
successors in interest as custodian for the Depository.
Due Date: With respect to each Mortgage Loan, the date in each month
on which its Scheduled Payment is due if such due date is the first day of a
month and otherwise is deemed to be the first day of the following month or
such other date specified in the related Servicing Agreement.
Due Period: With respect to any Distribution Date and each Mortgage
Loan, the period commencing on the second day of the month preceding the
calendar month in which the Distribution Date occurs and ending at the close
of business on the first day of the month in which the Distribution Date
occurs.
Eligible Account: Any of (i) a segregated account maintained with a
federal or state chartered depository institution (A) the short-term
obligations of which are rated A-1 or better by Standard & Poor's and P-1 by
Moody's at the time of any deposit therein or (B) insured by the FDIC (to the
limits established by such Corporation), the uninsured deposits in which
account are otherwise secured such that, as evidenced by an Opinion of
Counsel (obtained by the Person requesting that the account be held pursuant
to this clause (i)) delivered to the Securities Administrator prior to the
establishment of such account, the Certificateholders will have a claim with
respect to the funds in such account and a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments, each of which shall mature not later than the Business Day
immediately preceding the Distribution Date next following the date of
investment in such collateral or the Distribution Date if such Permitted
Investment is an obligation of the institution that maintains the
Distribution Account) securing such funds that is superior to claims of any
other depositors or general creditors of the depository institution with
which such account is maintained, (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company with trust powers acting in its fiduciary capacity or (iii) a
segregated account or accounts of a depository institution acceptable to the
Rating Agencies (as evidenced in writing by the Rating Agencies that use of
any such account as the Distribution Account will not have an adverse effect
on the then-current ratings assigned to the Classes of Certificates then
rated by the Rating Agencies). Eligible Accounts may bear interest.
EMC: EMC Mortgage Corporation, and any successor thereto.
EMC Servicing Agreement: The Servicing Agreement, dated as of
September 1, 2005, between Structured Asset Mortgage Investments II Inc. and
EMC as attached hereto as Exhibit H-2.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 8.01.
EverHome: EverHome Mortgage Company (formerly known as Alliance
Mortgage Corporation), and any successor thereto.
EverHome Servicing Agreements: The Subservicing Agreement, dated as of
August 1, 2002, between EverHome and EMC, as attached hereto as Exhibit H-3.
Excess Cashflow: With respect to any Distribution Date, the sum of (i)
Remaining Excess Spread for such Distribution Date and (ii)
Overcollateralization Release Amount for such Distribution Date; provided,
however, that the Excess Cashflow shall include Principal Funds on and after
the Distribution Date on which the aggregate Certificate Principal Balance of
the Class I-1A-1, Class I-1A-2, Class I-M-1, Class I-M-2, Class I-B-1, Class
I-B-2 and Class I-B-3 Certificates has been reduced to zero (other than
Principal Funds otherwise distributed to the Holders of Class I-1A-1, Class
I-1A-2, Class I-M-1, Class I-M-2, Class I-B-1, Class I-B-2 and Class I-B-3
Certificates on such Distribution Date).
Excess Liquidation Proceeds: To the extent that such amount is not
required by law to be paid to the related Mortgagor, the amount, if any, by
which Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed
the sum of (i) the Outstanding Principal Balance of such Mortgage Loan and
accrued but unpaid interest at the related Mortgage Interest Rate through the
last day of the month in which the related Liquidation Date occurs, plus
(ii) related Liquidation Expenses.
Excess Spread: With respect to any Distribution Date, the excess, if
any, of (i) the Interest Funds for such Distribution Date over (ii) the sum
of the Current Interest on the Group I Offered Certificates and Interest
Carry Forward Amounts on the Class I-A Certificates, in each case on such
Distribution Date.
Extra Principal Distribution Amount: With respect to any Distribution
Date, an amount derived from Excess Spread equal to the lesser of (i) the
excess, if any, of the Overcollateralization Target Amount for such
Distribution Date over the Overcollateralization Amount for such Distribution
Date and (ii) the Excess Spread for such Distribution Date.
Xxxxxx Xxx: Federal National Mortgage Association and any successor
thereto.
FDIC: Federal Deposit Insurance Corporation and any successor thereto.
Final Certification: The certification substantially in the form of
Exhibit Three to the Custodial Agreement.
Fiscal Quarter: December 1 through the last day of February, March 1
through May 31, June 1 through August 31, or September 1 through November 30,
as applicable.
Fractional Undivided Interest: With respect to any Class of
Certificates (other than the Class XP Certificates), the fractional undivided
interest evidenced by any Certificate of such Class the numerator of which is
the Certificate Principal Balance of such Certificate and the denominator of
which is the Certificate Principal Balance of such Class. With respect to
the Class XP Certificates, the percentage interest stated thereon. With
respect to the Certificates in the aggregate, the fractional undivided
interest evidenced by (i) a Residual Certificate will be deemed to equal
0.50% multiplied by the percentage interest of such Residual Certificate,
(ii) the Class B-IO Certificates will be deemed to equal 1.00% and (iii) a
Certificate of any other Class will be deemed to equal 98.00% multiplied by a
fraction, the numerator of which is the Certificate Principal Balance of such
Certificate and the denominator of which is the aggregate Certificate
Principal Balance of all the Certificates other than the Class B-IO
Certificates.
Xxxxxxx Mac: Xxxxxxx Mac, formerly the Federal Home Loan Mortgage
Corporation, and any successor thereto.
Global Certificate: Any Private Certificate registered in the name of
the Depository or its nominee, beneficial interests in which are reflected on
the books of the Depository or on the books of a Person maintaining an
account with such Depository (directly or as an indirect participant in
accordance with the rules of such depository).
GreenPoint: GreenPoint Mortgage Funding, Inc., and any successor
thereto.
GreenPoint Servicing Agreement: The Purchase, Warranties and Servicing
Agreement, dated as of September 1, 2003, between GreenPoint and EMC attached
hereto as Exhibit H-4.
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth
in the related Mortgage Note and indicated on the Mortgage Loan Schedule
which percentage is added to the related Index on each Interest Adjustment
Date to determine (subject to rounding, the minimum and maximum Mortgage
Interest Rate and the Periodic Rate Cap) the Mortgage Interest Rate until the
next Interest Adjustment Date.
Group I Certificates: The Group I Senior Certificates, the Group I
Subordinate Certificates and the Group I Non-Offered Subordinate Certificates.
Group I Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group I Non-Offered Subordinate Certificates: The Class I-B-3, the
Class XP and the Class B-IO Certificates.
Group I Offered Certificates: The Group I Senior Certificates and the
Group I Offered Subordinate Certificates.
Group I Offered Subordinate Certificates: The Class I-M-1, Class I-M-2,
Class I-B-1 and Class I-B-2 Certificates.
Group I Senior Certificates: The Class I-A Certificates.
Group I Subordinate Certificates: The Group I Offered Subordinate
Certificates and the Group I Non-Offered Subordinate Certificates.
Group II Certificates: The Group II Senior Certificates and the Group
II Subordinate Certificates.
Group II Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group II Non-Offered Subordinate Certificates: The Class II-B-4, Class
II-B-5 and Class II-B-6 Certificates.
Group II Offered Certificates: The Group II Senior Certificates and
the Group II Offered Subordinate Certificates.
Group II Offered Subordinate Certificates: The Class II-M-1, Class
II-M-2, Class II-M-3, Class II-M-4, Class II-M-5, Class II-B-1, Class II-B-2
and Class II-B-3 Certificates.
Group II Senior Certificates: The Class II-1A-1, Class II-1A-2, Class
II-2A-1, Class II-3A-1, Class II-3A-2, Class II-4A-1, Class II-5A-1, Class
II-5A-2, Class II-6A-1 and Class II-6A-2 Certificates.
Group II Subordinate Certificates: The Group II Offered Subordinate
Certificates and the Group II Non-Offered Subordinate Certificates.
Harbourside: Savannah Bank, NA dba Harbourside Mortgage Corporation,
and any successor thereto.
Harbourside Servicing Agreement: The Purchase, Warranties and Servicing
Agreement, dated as of April 1, 2005, between Harbourside and EMC attached
hereto as Exhibit 5.
Holder: The Person in whose name a Certificate is registered in the
Certificate Register, except that, subject to Sections 11.02(b) and 11.05(e),
solely for the purpose of giving any consent pursuant to this Agreement, any
Certificate registered in the name of the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any Affiliate thereof shall be
deemed not to be outstanding and the Fractional Undivided Interest evidenced
thereby shall not be taken into account in determining whether the requisite
percentage of Fractional Undivided Interests necessary to effect any such
consent has been obtained.
HomeBanc: HomeBanc Mortgage Corporation, and any successor thereto.
HomeBanc Servicing Agreement: Purchase, Warranties and Servicing
Agreement, dated as of January 1, 2004, between HomeBanc and EMC, attached
hereto as Exhibit H-6.
Indemnified Persons: The Trustee, the Master Servicer, the Custodian
and the Securities Administrator and their officers, directors, agents and
employees and, with respect to the Trustee, any separate co-trustee and its
officers, directors, agents and employees.
Independent: When used with respect to any specified Person, this term
means that such Person (a) is in fact independent of the Depositor or the
Master Servicer and of any Affiliate of the Depositor or the Master Servicer,
(b) does not have any direct financial interest or any material indirect
financial interest in the Depositor or the Master Servicer or any Affiliate
of the Depositor or the Master Servicer and (c) is not connected with the
Depositor or the Master Servicer or any Affiliate as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing
similar functions.
Index: The index, if any, specified in a Mortgage Note by reference to
which the related Mortgage Interest Rate will be adjusted from time to time.
Individual Certificate: Any Private Certificate registered in the name
of the Holder other than the Depository or its nominee.
Initial Certification: The certification substantially in the form of
Exhibit One to the Custodial Agreement.
Initial Mortgage Loan: A Mortgage Loan transferred and assigned to the
Trust on the Closing Date pursuant to Section 2.01 and held as a part of the
Trust, as identified in the applicable Mortgage Loan Schedule.
Institutional Accredited Investor: Any Person meeting the requirements
of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act
or any entity all of the equity holders in which come within such paragraphs.
Insurance Policy: With respect to any Mortgage Loan, any standard
hazard insurance policy, flood insurance policy or title insurance policy.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy covering any Mortgage Loan or Mortgaged Property other than amounts
required to be paid over to the Mortgagor pursuant to law or the related
Mortgage Note or Security Instrument and other than amounts used to repair or
restore the Mortgaged Property or to reimburse insured expenses, including
the related Servicer's costs and expenses incurred in connection with
presenting claims under the related Insurance Policies.
Interest Accrual Period: With respect to each Distribution Date, for
each Class of Group II Certificates, the calendar month preceding the month
in which such Distribution Date occurs. The Interest Accrual Period for the
Group I Certificates and the Class I-B-3 Certificates will be the period from
and including the preceding distribution date (or from the Closing Date, in
the case of the first Distribution Date) to and including the day prior to
the current Distribution Date.
Interest Adjustment Date: With respect to a Mortgage Loan, the date,
if any, specified in the related Mortgage Note on which the Mortgage Interest
Rate is subject to adjustment.
Interest Carryforward Amount: As of the first Distribution Date and
with respect to each Class of Group I Offered Certificates, zero, and for
each Distribution Date thereafter, the sum of (i) the excess of (a) the
Current Interest for such Class with respect to prior Distribution Dates over
(b) the amount actually distributed to such Class of Group I Certificates
with respect to interest on or after such prior Distribution Dates and (ii)
interest thereon (to the extent permitted by applicable law) at the
applicable Pass-Through Rate for such Class for the related Interest Accrual
Period including the Interest Accrual Period relating to such Distribution
Date.
Interest Coverage Account: The account or sub-account established and
maintained pursuant to Section 4.10(a) and which shall be an Eligible Account
or a sub-account of an Eligible Account.
Interest Coverage Amount: The amount to be paid by the Depositor to the
Paying Agent for deposit in the Interest Coverage Account on the Closing Date
pursuant to Section 4.10, which amount is $115,818.69.
Interest Funds: For any Distribution Date and Loan Group I, (i) the
sum, without duplication, of (a) all scheduled interest collected in respect
to the related Group I Mortgage Loans during the related Due Period less the
related Servicing Fee, (b) all Monthly Advances relating to interest with
respect to the related Group I Mortgage Loans made on or prior to the related
Distribution Account Deposit Date, (c) all Compensating Interest Payments
with respect to the Group I Mortgage Loans and required to be remitted by the
Master Servicer pursuant to this Agreement or the related Servicer pursuant
to the related Servicing Agreement with respect to such Distribution Date,
(d) Liquidation Proceeds with respect to the related Group I Mortgage Loans
collected during the related Prepayment Period (or, in the case of Subsequent
Recoveries, during the related Due Period), to the extent such Liquidation
Proceeds relate to interest, (e) all amounts relating to interest with
respect to each related Group I Mortgage Loan purchased by EMC pursuant to
Sections 2.02 and 2.03 or by the Depositor pursuant to Section 3.21 during
the related Due Period, (f) all amounts in respect of interest paid by EMC
pursuant to Section 10.01 in respect to Loan Group I, in each case to the
extent remitted by EMC or its designee, as applicable, to the Distribution
Account pursuant to this Agreement, and (g) any amount withdrawn from the
Pre-Funding Reserve Account pursuant to Section 4.09(c)(iii) in respect of
Loan Group I, minus (ii) all amounts relating to interest required to be
reimbursed pursuant to Sections 4.01, 4.03 and 4.05 or as otherwise set forth
in this Agreement and allocated to Loan Group I.
Interest Shortfall: With respect to any Distribution Date and each
Mortgage Loan that during the related Prepayment Period was the subject of a
Principal Prepayment or constitutes a Relief Act Mortgage Loan, an amount
determined as follows:
(a) Partial principal prepayments received during the relevant
Prepayment Period: The difference between (i) one month's interest at the
applicable Net Rate on the amount of such prepayment and (ii) the amount of
interest for the calendar month of such prepayment (adjusted to the
applicable Net Rate) received at the time of such prepayment;
(b) Principal prepayments in full received during the relevant Prepayment
Period: The difference between (i) one month's interest at the applicable
Net Rate on the Stated Principal Balance of such Mortgage Loan immediately
prior to such prepayment and (ii) the amount of interest for the calendar
month of such prepayment (adjusted to the applicable Net Rate) received at
the time of such prepayment; and
(c) Relief Act Mortgage Loans: As to any Relief Act Mortgage Loan, the
excess of (i) 30 days' interest (or, in the case of a principal prepayment in
full, interest to the date of prepayment) on the Stated Principal Balance
thereof (or, in the case of a principal prepayment in part, on the amount so
prepaid) at the related Net Rate over (ii) 30 days' interest (or, in the case
of a principal prepayment in full, interest to the date of prepayment) on
such Stated Principal Balance (or, in the case of a Principal Prepayment in
part, on the amount so prepaid) at the annual interest rate required to be
paid by the Mortgagor as limited by application of the Relief Act.
Interim Certification: The certification substantially in the form of
Exhibit Two to the Custodial Agreement.
Investment Letter: The letter to be furnished by each Institutional
Accredited Investor which purchases any of the Private Certificates in
connection with such purchase, substantially in the form set forth as
Exhibit F-1 hereto.
Lender-Paid PMI Rate: With respect to each Mortgage Loan covered by a
lender-paid primary mortgage insurance policy, the premium to be paid by the
applicable Servicer out of interest collections on the related Mortgage Loan,
as stated in the Mortgage Loan Schedule.
LIBOR Business Day: Any day other than a Saturday or a Sunday or a day
on which banking institutions in the city of London, England are required or
authorized by law to be closed.
LIBOR Determination Date: With respect to each Class of Offered
Certificates and for the first Interest Accrual Period, September 28, 2005.
With respect to each Class of Offered Certificates and any Interest Accrual
Period thereafter, the second LIBOR Business Day preceding the commencement
of such Interest Accrual Period.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Servicer or the Master Servicer has determined that all amounts it expects to
recover from or on account of such Mortgage Loan have been recovered.
Liquidation Date: With respect to any Liquidated Mortgage Loan, the
date on which the Master Servicer or the Servicer has certified that such
Mortgage Loan has become a Liquidated Mortgage Loan.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer or the Servicer in connection with the liquidation of such Mortgage
Loan and the related Mortgage Property, such expenses including (a) property
protection expenses, (b) property sales expenses, (c) foreclosure and sale
costs, including court costs and reasonable attorneys' fees, and (d) similar
expenses reasonably paid or incurred in connection with liquidation.
Liquidation Proceeds: Amounts received in connection with the
liquidation of a defaulted Mortgage Loan, whether through trustee's sale,
foreclosure sale, Insurance Proceeds, condemnation proceeds or otherwise and
Subsequent Recoveries.
Loan Group: Loan Group I or Loan Group II, as applicable.
Loan Group I: The Mortgage Loans identified as such on the Mortgage
Loan Schedule and any Subsequent Mortgage Loans added to Loan Group I.
Loan Group II: Sub-Loan Group II-1, Sub-Loan Group II-2, Sub-Loan Group
II-3, Sub-Loan Group II-4, Sub-Loan Group II-5 or Sub-Loan Group II-6.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the
Original Value of the related Mortgaged Property.
Loss Allocation Limitation: The meaning specified in Section 6.02.2(c)
hereof.
Loss Severity Percentage: With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the amount of
Realized Losses incurred on a Mortgage Loan and the denominator of which is
the Stated Principal Balance of such Mortgage Loan immediately prior to the
liquidation of such Mortgage Loan.
Lost Notes: The original Mortgage Notes that have been lost, as
indicated on the Mortgage Loan Schedule.
Margin: With respect to any Distribution Date on or prior to the first
possible Optional Termination Date with respect to the Group I Mortgage Loans
and (i) with respect to the Class I-1A-1 Certificates, 0.26% per annum, (ii)
with respect to the Class I-1A-2 Certificates, 0.36% per annum, (iii) with
respect to the Class I-M-1 Certificates, 0.50% per annum, (iv) with respect
to the Class I-M-2 Certificates, 0.70% per annum, (v) with respect to the
Class I-B-1 Certificates, 1.30% per annum, (vi) with respect to the Class
I-B-2 Certificates, 1.90% per annum, and (vii) with respect to the Class
I-B-3 Certificates, 2.10% per annum; and with respect to any Distribution
Date after the first possible Optional Termination Date and (i) with respect
to the Class I-1A-1 Certificates, 0.52% per annum, (ii) with respect to the
Class I-1A-2 Certificates, 0.72% per annum, (iii) with respect to the Class
I-M-1 Certificates, 0.75% per annum, (iv) with respect to the Class I-M-2
Certificates, 1.05% per annum, (v) with respect to the Class I-B-1
Certificates, 1.95% per annum, (vi) with respect to the Class I-B-2
Certificates, 2.85% per annum, and (vii) with respect to the Class I-B-3
Certificates, 3.15% per annum.
Marker Rate: With respect to the Class B-IO Certificates or the REMIC
IV Regular Interest B-IO-I and any Distribution Date, in relation to the
REMIC III Regular Interests LT1, LT2, LT3, LT4 and LTY-I-1, a per annum rate
equal to two (2) times the weighted average of the Uncertificated REMIC III
Pass-Through Rates for REMIC III Regular Interest LT2 and REMIC III Regular
Interest LT3 and, in relation to the REMIC III Regular Interests LT5, LT6,
LT7, LT8 and LTY-I-2, a per annum rate equal to two (2) times the weighted
average of the Uncertificated REMIC III Pass-Through Rates for REMIC III
Regular Interest LT6 and REMIC III Regular Interest LT7.
Master Servicer: As of the Closing Date, Xxxxx Fargo Bank, National
Association and, thereafter, its respective successors in interest that meet
the qualifications of the Servicing Agreements and this Agreement.
Master Servicer Certification: A written certification covering
servicing of the Mortgage Loans by the Servicers and signed by an officer of
the Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act of 2002, as
amended from time to time, and (ii) the February 21, 2003 Statement by the
Staff of the Division of Corporation Finance of the Securities and Exchange
Commission Regarding Compliance by Asset-Backed Issuers with Exchange Act
Rules 13a-14 and 15d-14, as in effect from time to time; provided that if,
after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002 is amended, (b) the
Statement referred to in clause (ii) is modified or superceded by any
subsequent statement, rule or regulation of the Securities and Exchange
Commission or any statement of a division thereof, or (c) any future
releases, rules and regulations are published by the Securities and Exchange
Commission from time to time pursuant to the Xxxxxxxx-Xxxxx Act of 2002,
which in any such case affects the form or substance of the required
certification and results in the required certification being, in the
reasonable judgment of the Master Servicer, materially more onerous than the
form of the required certification as of the Closing Date, the Master
Servicer Certification shall be as agreed to by the Master Servicer and the
Depositor following a negotiation in good faith to determine how to comply
with any such new requirements.
Master Servicer Collection Account: The trust account or accounts
created and maintained by the Master Servicer pursuant to Section 4.02, which
shall be denominated "JPMorgan Chase Bank, National Association, as Trustee
f/b/o holders of Structured Asset Mortgage Investments II Inc., Bear Xxxxxxx
ALT-A Trust 2005-9, Mortgage Pass-Through Certificates, Series 2005-9,
Collection Account." The Master Servicer Collection Account shall be an
Eligible Account.
Master Servicing Compensation: The meaning specified in Section 3.14.
Material Defect: The meaning specified in Section 2.02(a).
Maximum Lifetime Mortgage Rate: The maximum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes
in the applicable Index.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS® System: The system of recording transfers of Mortgage Loans
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS® System.
Minimum Lifetime Mortgage Rate: The minimum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes
in the applicable Index.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
Monthly Advance: An advance of principal or interest required to be
made by the applicable Servicer pursuant to the related Servicing Agreement
or the Master Servicer pursuant to Section 6.05.
Monthly Delinquency Percentage: With respect to a Distribution Date,
the percentage equivalent of a fraction, the numerator of which is the
aggregate Stated Principal Balance of the Group I Mortgage Loans that are 60
days or more Delinquent or are in bankruptcy or foreclosure or are REO
Properties for such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of Group I Mortgage Loans for such
Distribution Date.
Moody's: Xxxxx'x Investors Service, Inc. or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a
first priority lien on an estate in fee simple or leasehold interest in real
property securing a Mortgage Loan.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan and any additional documents
required to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues from
time to time on any Mortgage Loan pursuant to the related Mortgage Note,
which rate is initially equal to the "Mortgage Interest Rate" set forth with
respect thereto on the Mortgage Loan Schedule.
Mortgage Loan: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01, Section 2.04 or Section 2.07 and held as a part of
the Trust Fund, as identified in the Mortgage Loan Schedule (which shall
include, without limitation, with respect to each Mortgage Loan, each related
Mortgage Note, Mortgage and Mortgage File and all rights appertaining
thereto), including a mortgage loan the property securing which has become an
REO Property.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement
dated as of September 30, 2005, between EMC, as seller, and Structured Asset
Mortgage Investments II Inc., as purchaser, and all amendments thereof and
supplements thereto, attached as Exhibit J.
Mortgage Loan Schedule: The schedule, attached hereto as Exhibit B
with respect to the Initial Mortgage Loans, and the schedule attached as
Exhibit 1 to the related Subsequent Transfer Instrument with respect to the
related Subsequent Mortgage Loans, each as amended from time to time to
reflect the repurchase or substitution of Mortgage Loans or the addition of
Subsequent Mortgage Loans pursuant to this Agreement, or the Mortgage Loan
Purchase Agreement or the Subsequent Mortgage Loan Purchase Agreement, as the
case may be.
Mortgage Note: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
Mortgaged Property: Land and improvements securing the indebtedness of
a Mortgagor under the related Mortgage Loan or, in the case of REO Property,
such REO Property.
Mortgagor: The obligor on a Mortgage Note.
National City: National City Mortgage Co., and any successor thereto.
National City Servicing Agreement: The Purchase, Warranties and
Servicing Agreement, dated as of October 1, 2001, between National City and
EMC, attached hereto as Exhibit 7.
Net Interest Shortfall: With respect to any Distribution Date, the
Interest Shortfall, if any, for such Distribution Date net of Compensating
Interest Payments made with respect to such Distribution Date.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan,
Liquidation Proceeds net of (i) Liquidation Expenses which are payable
therefrom to the Servicer or the Master Servicer in accordance with the
Servicing Agreement or this Agreement and (ii) unreimbursed advances by the
Servicer or the Master Servicer and Monthly Advances.
Net Rate: With respect to each Mortgage Loan, the Mortgage Interest
Rate in effect from time to time less the sum of (1) the Servicing Fee Rate
and (2) the Lender Paid PMI Rate, if any, attributable thereto, in each case
expressed as a per annum rate.
Net Rate Cap: For any Distribution Date and the Group I Certificates,
the weighted average of the Net Rates of the Group I Mortgage Loans as of the
beginning of the related Due Period, weighted on the basis of the Certificate
Principal Balances thereof as of the preceding Distribution Date, as adjusted
to an effective rate reflecting the accrual of interest on the basis of a
360-day year and the actual number of days elapsed in the related Interest
Accrual Period. For federal income tax purposes, the Net Rate Cap with
respect to the Group I Subordinate Certificates is equal to the
Uncertificated REMIC II Regular Interests LT1 and LT2.
Non-Offered Subordinate Certificates: The Group I Non-Offered
Subordinate Certificates and the Group II Non-Offered Subordinate
Certificates.
Nonrecoverable Advance: Any advance or Monthly Advance (i) which was
previously made or is proposed to be made by the Master Servicer, the Trustee
(as successor Master Servicer) or the applicable Servicer and (ii) which, in
the good faith judgment of the Master Servicer, the Trustee or the applicable
Servicer, will not or, in the case of a proposed advance or Monthly Advance,
would not, be ultimately recoverable by the Master Servicer, the Trustee (as
successor Master Servicer) or the applicable Servicer from Liquidation
Proceeds, Insurance Proceeds or future payments on the Mortgage Loan for
which such advance or Monthly Advance was made or is proposed to be made.
Notional Amount: The Notional Amount of the Class B-IO Certificates
immediately prior to any Distribution Date is equal to the aggregate of the
Uncertificated Principal Balances of the REMIC II Regular Interests.
Offered Certificates: The Group I Offered Certificates and the Group
II Offered Certificates.
Offered Subordinate Certificates: The Group I Offered Subordinate
Certificates and the Group II Offered Subordinate Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President or
Assistant Vice President or other authorized officer of the Master Servicer
or the Depositor, as applicable, and delivered to the Trustee, as required by
this Agreement.
One-Month LIBOR: With respect to any Interest Accrual Period, the rate
determined by the Securities Administrator on the related LIBOR Determination
Date on the basis of the rate for U.S. dollar deposits for one month that
appears on Telerate Screen Page 3750 as of 11:00 a.m. (London time) on such
LIBOR Determination Date; provided that the parties hereto acknowledge that
One-Month LIBOR for the first Interest Accrual Period shall the rate
determined by the Securities Administrator two Business Days prior to the
Closing Date. If such rate does not appear on such page (or such other page
as may replace that page on that service, or if such service is no longer
offered, such other service for displaying One-Month LIBOR or comparable
rates as may be reasonably selected by the Securities Administrator),
One-Month LIBOR for the applicable Interest Accrual Period will be the
Reference Bank Rate. If no such quotations can be obtained by the Securities
Administrator and no Reference Bank Rate is available, One-Month LIBOR will
be One-Month LIBOR applicable to the preceding Interest Accrual Period.
Opinion of Counsel: A written opinion of counsel who is or are
acceptable to the Trustee and who, unless required to be Independent (an
"Opinion of Independent Counsel"), may be internal counsel for the Company,
the Master Servicer or the Depositor.
Optional Termination Date: With respect to (i) the Group I Mortgage
Loans, the Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans is less than 20% of the sum of (A) the Cut-off
Date Balance and (B) the Pre-Funded Amount for Loan Group I as of the Closing
Date and (ii) with respect to the Group II Mortgage Loans, the Distribution
Date on which the aggregate Stated Principal Balance of the Group II Mortgage
Loans is less than 10% of the sum of (A) the Cut-off Date Balance and (B) the
Pre-Funded Amounts of the Sub-Loan Groups in Loan Group II as of the Closing
Date.
Original Group II Subordinate Principal Balance: The sum of the
aggregate Certificate Principal Balances of each Class of Group II
Subordinate Certificates as of the Closing Date.
Original Value: The lesser of (i) the Appraised Value or (ii) the
sales price of a Mortgaged Property at the time of origination of a Mortgage
Loan, except in instances where either clauses (i) or (ii) is unavailable,
the other may be used to determine the Original Value, or if both clauses
(i) and (ii) are unavailable, Original Value may be determined from other
sources reasonably acceptable to the Depositor.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage
Loan which, prior to such Due Date, was not the subject of a Principal
Prepayment in full, did not become a Liquidated Mortgage Loan and was not
purchased or replaced.
Outstanding Principal Balance: As of the time of any determination,
the principal balance of a Mortgage Loan remaining to be paid by the
Mortgagor, or, in the case of an REO Property, the principal balance of the
related Mortgage Loan remaining to be paid by the Mortgagor at the time such
property was acquired by the Trust Fund less any Net Liquidation Proceeds
with respect thereto to the extent applied to principal.
Overcollateralization Amount: With respect to any Distribution Date,
the excess, if any, of (a) the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date over (b) the aggregate
Certificate Principal Balance of the Group I Offered Certificates and the
Class I-B-3 Certificates on such Distribution Date (after taking into account
the payment of principal other than any Extra Principal Distribution Amount
on such Certificates).
Overcollateralization Release Amount: With respect to any Distribution
Date is the lesser of (x) the sum of the amounts described in clauses (1)
through (5) in the definition of Principal Funds for such Distribution Date
and (y) the excess, if any, of (i) the Overcollateralization Amount for such
Distribution Date (assuming that 100% of such Principal Funds is applied as a
principal payment on such Distribution Date) over (ii) the
Overcollateralization Target Amount for such Distribution Date (with the
amount pursuant to clause (y) deemed to be $0 if the Overcollateralization
Amount is less than or equal to the Overcollateralization Target Amount on
that Distribution Date).
Overcollateralization Target Amount: With respect to any Distribution
Date (a) prior to the Stepdown Date, approximately 1.00% of the aggregate
Stated Principal Balance of the Group I Mortgage Loans as of the Cut-Off
Date, (b) on or after the Stepdown Date and if a Trigger Event is not in
effect, the greater of (i) the lesser of (1) approximately 1.00% of the
aggregate Stated Principal Balance of the Group I Mortgage Loans as of the
Cut-Off Date and (2) 2.00% of the then current aggregate Stated Principal
Balance of the Group I Mortgage Loans as of such Distribution Date and (ii)
approximately $3,891,850 and (c) on or after the Stepdown Date and if a
Trigger Event is in effect, the Overcollateralization Target Amount for the
immediately preceding Distribution Date.
Pass-Through Rate: As to each Class of Certificates, the rate of
interest determined as provided with respect thereto in Section 5.01(c). Any
monthly calculation of interest at a stated rate shall be based upon annual
interest at such rate divided by twelve.
Paying Agent: Xxxxx Fargo Bank, National Association, in its capacity
as paying agent or securities administrator (as applicable) hereunder, or its
successor in interest, or any successor securities administrator or paying
agent appointed as herein provided.
Periodic Rate Cap: With respect to each Mortgage Loan, the maximum
adjustment that can be made to the Mortgage Interest Rate on each Interest
Adjustment Date in accordance with its terms, regardless of changes in the
applicable Index.
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders:
(i) direct obligations of, and obligations the timely payment of which are
fully guaranteed by the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America;
(ii) (a) demand or time deposits, federal funds or bankers' acceptances
issued by any depository institution or trust company incorporated under the
laws of the United States of America or any state thereof (including the
Trustee or the Master Servicer or its Affiliates acting in its commercial
banking capacity) and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial paper and/or
the short-term debt rating and/or the long-term unsecured debt obligations of
such depository institution or trust company at the time of such investment
or contractual commitment providing for such investment have the Applicable
Credit Rating or better from each Rating Agency and (b) any other demand or
time deposit or certificate of deposit that is fully insured by the Federal
Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security described in
clause (i) above or (b) any other security issued or guaranteed by an agency
or instrumentality of the United States of America, the obligations of which
are backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) described in clause (ii)(a) above where the Trustee
holds the security therefor;
(iv) securities bearing interest or sold at a discount issued by any
corporation (including the Trustee or the Master Servicer or its Affiliates)
incorporated under the laws of the United States of America or any state
thereof that have the Applicable Credit Rating or better from each Rating
Agency at the time of such investment or contractual commitment providing for
such investment; provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent that investments
therein will cause the then outstanding principal amount of securities issued
by such corporation and held as part of the Trust to exceed 10% of the
aggregate Outstanding Principal Balances of all the Mortgage Loans and
Permitted Investments held as part of the Trust;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
having the Applicable Credit Rating or better from each Rating Agency at the
time of such investment;
(vi) a Reinvestment Agreement issued by any bank, insurance company or other
corporation or entity;
(vii) any other demand, money market or time deposit, obligation, security or
investment as may be acceptable to each Rating Agency as evidenced in writing
by each Rating Agency to the Trustee; and
(viii) interests in any money market fund (including any such fund managed or
advised by the Trustee or the Master Servicer or any affiliate thereof) which
at the date of acquisition of the interests in such fund and throughout the
time such interests are held in such fund has the highest applicable short
term rating by each Rating Agency rating such funds or such lower rating as
will not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by each Rating Agency, as evidenced in writing; provided,
however, that no instrument or security shall be a Permitted Investment if
such instrument or security evidences a right to receive only interest
payments with respect to the obligations underlying such instrument or if
such security provides for payment of both principal and interest with a
yield to maturity in excess of 120% of the yield to maturity at par or if
such instrument or security is purchased at a price greater than par.
Permitted Transferee: Any Person other than a Disqualified
Organization or an "electing large partnership" (as defined by Section 775 of
the Code).
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
PHH: PHH Mortgage Corporation (formerly known as Cendant Mortgage
Corporation), and any successor thereto.
PHH Servicing Agreement: The Purchase, Warranties and Servicing
Agreement dated as of October 23, 2001, among PHH, Xxxxxx'x Gate Residential
Mortgage Trust and EMC, as attached hereto as Exhibit H-8.
Physical Certificates: The Residual Certificates and the Private
Certificates.
Plan: The meaning specified in Section 5.07(a).
Pre-Funded Amount: The amount to be paid by the Depositor to the Paying
Agent for deposit in the Pre-Funding Account on the Closing Date with respect
to the Mortgage Loans in each Loan Group, which amount is, with respect to
Loan Group I, $1,738,053, with respect to Sub-Loan Group II-1, $1,195,760,
with respect to Sub-Loan Group II-2, $3,844,289, with respect to Sub-Loan
Group II-3, $107,000, with respect to Sub-Loan Group II-4, $1,529,920, and
with respect to Sub-Loan Group II-6, $497,419.
Pre-Funding Account: The account or sub-account established and
maintained pursuant to Section 4.09 (a) and which shall be an Eligible
Account or a sub-account of an Eligible Account.
Pre-Funding Period: The period from the Closing Date until the earliest
of (i) the date on which the amount on deposit in the Pre-Funding Account
(exclusive of investment income) is reduced to zero or (ii) December 17, 2005.
Pre-Funding Reserve Account: The account or sub-account established and
maintained pursuant to Section 4.09(d) and which shall be an Eligible Account
or a sub-account of an Eligible Account.
Prepayment Charge: With respect to any Mortgage Loan, the charges or
premiums, if any, due in connection with a full or partial prepayment of such
Mortgage Loan in accordance with the terms thereof.
Prepayment Charge Loan: Any Group I Mortgage Loan for which a
Prepayment Charge may be assessed and to which such Prepayment Charge the
Class XP Certificates are entitled, as indicated on the Mortgage Loan
Schedule.
Prepayment Interest Shortfall: With respect to any Distribution Date,
for each Mortgage Loan that was the subject of a partial Principal Prepayment
or a Principal Prepayment in full during the related Prepayment Period (other
than a Principal Prepayment in full resulting from the purchase of a Group I
Mortgage Loan pursuant to Section 2.02, 2.03, 3.21 or 10.01 hereof), the
amount, if any, by which (i) one month's interest at the applicable Net Rate
on the Stated Principal Balance of such Group I Mortgage Loan immediately
prior to such prepayment or in the case of a partial Principal Prepayment on
the amount of such prepayment exceeds (ii) the amount of interest paid or
collected in connection with such Principal Prepayment less the sum of (a)
any Prepayment Charges and (b) the related Servicing Fee.
Prepayment Period: With respect to any Distribution Date and the
Mortgage Loans serviced by EMC, the period from the sixteenth day of the
calendar month preceding the calendar month in which such Distribution Date
occurs through the close of business on the fifteenth day of the calendar
month in which such Distribution Date occurs. With respect to any
Distribution Date and all other Mortgage Loans, the period that is provided
in the related Servicing Agreement.
Primary Mortgage Insurance Policy: Any primary mortgage guaranty
insurance policy issued in connection with a Mortgage Loan which provides
compensation to a Mortgage Note holder in the event of default by the obligor
under such Mortgage Note or the related Security Instrument, if any or any
replacement policy therefor through the related Interest Accrual Period for
such Class relating to a Distribution Date.
Principal Distribution Amount: With respect to each Distribution Date,
an amount equal to the excess of (i) sum of (a) the Principal Funds for such
Distribution Date and (b) any Extra Principal Distribution Amount for such
Distribution Date over (ii) any Overcollateralization Release Amount for such
Distribution Date.
Principal Funds: the sum, without duplication, of
1. the Scheduled Principal collected on the Group I Mortgage Loans
during the related Due Period or advanced on or before the
related servicer advance date,
2. prepayments in respect of the Group I Mortgage Loans, exclusive
of any Prepayment Charges, collected in the related Prepayment
Period,
3. the Stated Principal Balance of each Group I Mortgage Loan that
was repurchased by the Depositor or the related Servicer during
the related Due Period,
4. the amount, if any, by which the aggregate unpaid principal
balance of any Substitute Mortgage Loans is less than the
aggregate unpaid principal balance of any deleted mortgage loans
delivered by the related Servicer in connection with a
substitution of a Group I Mortgage Loan during the related Due
Period,
5. all Liquidation Proceeds collected during the related Prepayment
Period (or in the case of Subsequent Recoveries, during the
related Due Period) on the Group I Mortgage Loans, to the extent
such Liquidation Proceeds relate to principal, less all related
Nonrecoverable Advances relating to principal reimbursed during
the related Due Period,
6. the principal portion of the purchase price of the assets of the
Trust allocated to Loan Group I upon the exercise by EMC or its
designee of its optional termination right with respect to the
Group I Mortgage Loans,
7. any amount withdrawn from the Pre-Funding Account in respect of
Loan Group I pursuant to Section 4.09(e)(ii) and included in
Principal Funds, minus
8. any amounts required to be reimbursed to EMC, the
Depositor, a Servicer, the Master Servicer, the Custodian, the
Trustee or the Securities Administrator and allocated to Loan
Group I, as provided in the Agreement.
Principal Prepayment: Any payment (whether partial or full) or other
recovery of principal on a Mortgage Loan which is received in advance of its
scheduled Due Date to the extent that it is not accompanied by an amount as
to interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment, including Insurance
Proceeds and Repurchase Proceeds, but excluding the principal portion of Net
Liquidation Proceeds received at the time a Mortgage Loan becomes a
Liquidated Mortgage Loan.
Private Certificates: The Class I-B-3, Class B-IO, Class XP,
Class II-B-4, Class II-B-5 and Class II-B-6 Certificates.
Prospectus: The prospectus, dated December 20, 2004, as supplemented
by the prospectus supplement dated September 28, 2005, relating to the
offering of the Offered Certificates.
Protected Account: An account established and maintained for the
benefit of Certificateholders by each Servicer with respect to the related
Mortgage Loans and with respect to REO Property pursuant to the related
Servicing Agreement.
QIB: A Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act.
Qualified Insurer: Any insurance company duly qualified as such under
the laws of the state or states in which the related Mortgaged Property or
Mortgaged Properties is or are located, duly authorized and licensed in such
state or states to transact the type of insurance business in which it is
engaged and approved as an insurer by the Master Servicer, so long as the
claims paying ability of which is acceptable to the Rating Agencies for
pass-through certificates having the same rating as the Certificates rated by
the Rating Agencies as of the Closing Date.
Rating Agencies: Moody's and S&P.
Realized Loss: Any (i) Bankruptcy Loss or (ii) as to any Liquidated
Mortgage Loan, (x) the Outstanding Principal Balance of such Liquidated
Mortgage Loan plus accrued and unpaid interest thereon at the Mortgage
Interest Rate through the last day of the month of such liquidation, less (y)
the related Net Liquidation Proceeds with respect to such Mortgage Loan and
the related Mortgaged Property that are allocated to principal. In addition,
to the extent the Master Servicer receives Subsequent Recoveries with respect
to any Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such recoveries are applied to
reduce the Certificate Principal Balance of any Class of Certificates on any
Distribution Date.
Realized Losses on the Mortgage Loans shall be allocated to the REMIC I
Regular Interests as follows: (1) The interest portion of Realized Losses and
Net Interest Shortfalls on the Group II-1 Loans, if any, shall be allocated
between the Class Y-1 and Class Z-1 Regular Interests pro rata according to
the amount of interest accrued but unpaid thereon, in reduction thereof; (2)
the interest portion of Realized Losses and Net Interest Shortfalls on the
Group II-2 Loans, if any, shall be allocated between the Class Y-2 and Class
Z-2 Regular Interests pro rata according to the amount of interest accrued
but unpaid thereon, in reduction thereof; (3) the interest portion of
Realized Losses and Net Interest Shortfalls on the Group II-3 Loans, if any,
shall be allocated between the Class Y-3 and Class Z-3 Regular Interests pro
rata according to the amount of interest accrued but unpaid thereon, in
reduction thereof; (4) the interest portion of Realized Losses and Net
Interest Shortfalls on the Group II-4 Loans, if any, shall be allocated
between the Class Y-4 and Class Z-4 Regular Interests pro rata according to
the amount of interest accrued but unpaid thereon, in reduction thereof; (5)
the interest portion of Realized Losses and Net Interest Shortfalls on the
Group II-5 Loans, if any, shall be allocated between the Class Y-5 and Class
Z-5 Regular Interests pro rata according to the amount of interest accrued
but unpaid thereon, in reduction thereof; and (6) the interest portion of
Realized Losses and Net Interest Shortfalls on the Group II-6 Loans, if any,
shall be allocated between the Class Y-6 and Class Z-6 Regular Interests pro
rata according to the amount of interest accrued but unpaid thereon, in
reduction thereof. Any interest portion of such Realized Losses in excess of
the amount allocated pursuant to the preceding sentence shall be treated as a
principal portion of Realized Losses not attributable to any specific
Mortgage Loan in such Group and allocated pursuant to the succeeding
sentences. The principal portion of Realized Losses with respect to the
Mortgage Loans shall be allocated to the REMIC I Regular Interests as
follows: (1) the principal portion of Realized Losses on the Group II-1 Loans
shall be allocated, first, to the Class Y-1 Regular Interest to the extent of
the Class Y-1 Principal Reduction Amount in reduction of the Uncertificated
Principal Balance of such Regular Interest and, second, the remainder, if
any, of such principal portion of such Realized Losses shall be allocated to
the Class Z-1 Regular Interest in reduction of the Uncertificated Principal
Balance thereof; (2) the principal portion of Realized Losses on the Group
II-2 Loans shall be allocated, first, to the Class Y-2 Regular Interest to
the extent of the Class Y-2 Principal Reduction Amount in reduction of the
Uncertificated Principal Balance of such Regular Interest and, second, the
remainder, if any, of such principal portion of such Realized Losses shall be
allocated to the Class Z-2 Regular Interest in reduction of the
Uncertificated Principal Balance thereof; (3) the principal portion of
Realized Losses on the Group II-3 Loans shall be allocated, first, to the
Class Y-3 Regular Interest to the extent of the Class Y-3 Principal Reduction
Amount in reduction of the Uncertificated Principal Balance of such Regular
Interest and, second, the remainder, if any, of such principal portion of
such Realized Losses shall be allocated to the Class Z-3 Regular Interest in
reduction of the Uncertificated Principal Balance thereof; (4) the principal
portion of Realized Losses on the Group II-4 Loans shall be allocated, first,
to the Class Y-4 Regular Interest to the extent of the Class Y-4 Principal
Reduction Amount in reduction of the Uncertificated Principal Balance of such
Regular Interest and, second, the remainder, if any, of such principal
portion of such Realized Losses shall be allocated to the Class Z-4 Regular
Interest in reduction of the Uncertificated Principal Balance thereof; (5)
the principal portion of Realized Losses on the Group II-5 Loans shall be
allocated, first, to the Class Y-5 Regular Interest to the extent of the
Class Y-5 Principal Reduction Amount in reduction of the Uncertificated
Principal Balance of such Regular Interest and, second, the remainder, if
any, of such principal portion of such Realized Losses shall be allocated to
the Class Z-5 Regular Interest in reduction of the Uncertificated Principal
Balance thereof; and (6) the principal portion of Realized Losses on the
Group II-6 Loans shall be allocated, first, to the Class Y-6 Regular Interest
to the extent of the Class Y-6 Principal Reduction Amount in reduction of the
Uncertificated Principal Balance of such Regular Interest and, second, the
remainder, if any, of such principal portion of such Realized Losses shall be
allocated to the Class Z-6 Regular Interest in reduction of the
Uncertificated Principal Balance thereof. For any Distribution Date,
reductions in the Uncertificated Principal Balances of the Class Y and Class
Z Regular Interest pursuant to this definition of Realized Loss shall be
determined, and shall be deemed to occur, prior to any reductions of such
Uncertificated Principal Balances by distributions on such Distribution Date.
Record Date: For each Class of Group I Certificates, the Business Day
preceding the applicable Distribution Date so long as such Class of
Certificates remains in book-entry form; and otherwise, the close of business
on the last Business Day of the month immediately preceding the month of such
Distribution Date. For each Class of Group II Certificates, the close of
business on the last Business Day of the month immediately preceding the
month of such Distribution Date.
Reference Bank: A leading bank selected by the Securities Administrator
that is engaged in transactions in Eurodollar deposits in the international
Eurocurrency market.
Reference Bank Rate: With respect to any Interest Accrual Period, the
arithmetic mean, rounded upwards, if necessary, to the nearest whole multiple
of 0.03125%, of the offered rates for United States dollar deposits for one
month that are quoted by the Reference Banks as of 11:00 a.m., New York City
time, on the related interest determination date to prime banks in the London
interbank market for a period of one month in amounts approximately equal to
the aggregate Certificate Principal Balance of all Classes of Group I Offered
Certificates for such Interest Accrual Period, provided that at least two
such Reference Banks provide such rate. If fewer than two offered rates
appear, the Reference Bank Rate will be the arithmetic mean, rounded upwards,
if necessary, to the nearest whole multiple of 0.03125%, of the rates quoted
by one or more major banks in New York City, selected by the securities
administrator, as of 11:00 a.m., New York City time, on such date for loans
in U.S. dollars to leading European banks for a period of one month in
amounts approximately equal to the aggregate Certificate Principal Balance of
all Classes of Group I Offered Certificates.
Reinvestment Agreements: One or more reinvestment agreements,
acceptable to the Rating Agencies, from a bank, insurance company or other
corporation or entity (including the Trustee).
Related Certificates (A) For each class of REMIC III Regular
Interests, the Class or Classes of Certificates show opposite the name of
such REMIC III Regular Interest in the following table:
---------------------------------------------------------------------------------
REMIC III Regular Interest Classes of Certificates
---------------------------------------------------------------------------------
II-1A-1 II-1A-1
---------------------------------------------------------------------------------
II-1A-2 II-1A-2
---------------------------------------------------------------------------------
II-2A-1 II-2A-1
---------------------------------------------------------------------------------
II-3A-1 II-3A-1
---------------------------------------------------------------------------------
II-3A-2 II-3A-2
---------------------------------------------------------------------------------
II-4A-1 II-4A-1
---------------------------------------------------------------------------------
II-5A-1 II-5A-1
---------------------------------------------------------------------------------
II-5A-2 II-5A-2
---------------------------------------------------------------------------------
II-6A-1 II-6A-1
---------------------------------------------------------------------------------
II-6A-2 II-6A-2
---------------------------------------------------------------------------------
II-M-1 II-M-1
---------------------------------------------------------------------------------
II-M-2 II-M-2
---------------------------------------------------------------------------------
II-M-3 II-M-3
---------------------------------------------------------------------------------
II-M-4 II-M-4
---------------------------------------------------------------------------------
II-M-5 II-M-5
---------------------------------------------------------------------------------
II-B-1 II-B-1
---------------------------------------------------------------------------------
II-B-2 II-B-2
---------------------------------------------------------------------------------
II-B-3 II-B-3
---------------------------------------------------------------------------------
II-B-4 II-B-4
---------------------------------------------------------------------------------
II-B-5 II-B-5
---------------------------------------------------------------------------------
II-B-6 II-B-6
---------------------------------------------------------------------------------
(B) For each class of REMIC IV Regular Interest, the Class or Classes of
Certificates show opposite the name of such REMIC III Regular Interest in the
following table:
---------------------------------------------------------------------------------
REMIC IV Regular Interest Classes of Certificates
---------------------------------------------------------------------------------
I-1A-1 I-1A-1
---------------------------------------------------------------------------------
I-1A-2 I-1A-2
---------------------------------------------------------------------------------
I-M-1 I-M-1
---------------------------------------------------------------------------------
I-M-2 I-M-2
---------------------------------------------------------------------------------
I-B-1 I-B-1
---------------------------------------------------------------------------------
I-B-2 I-B-2
---------------------------------------------------------------------------------
I-B-3 I-B-3
---------------------------------------------------------------------------------
X-P X-P
---------------------------------------------------------------------------------
B-IO-I and B-IO-P B-IO
---------------------------------------------------------------------------------
II-1A-1 II-1A-1
---------------------------------------------------------------------------------
II-1A-2 II-1A-2
---------------------------------------------------------------------------------
II-2A-1 II-2A-1
---------------------------------------------------------------------------------
II-3A-1 II-3A-1
---------------------------------------------------------------------------------
II-4A-1 II-4A-1
---------------------------------------------------------------------------------
II-5A-1 II-5A-1
---------------------------------------------------------------------------------
II-5A-2 II-5A-2
---------------------------------------------------------------------------------
II-6A-1 II-6A-1
---------------------------------------------------------------------------------
II-6A-2 II-6A-2
---------------------------------------------------------------------------------
II-M-1 II-M-1
---------------------------------------------------------------------------------
II-M-2 II-M-2
---------------------------------------------------------------------------------
II-M-3 II-M-3
---------------------------------------------------------------------------------
II-M-4 II-M-4
---------------------------------------------------------------------------------
II-M-5 II-M-5
---------------------------------------------------------------------------------
II-B-1 II-B-1
---------------------------------------------------------------------------------
II-B-2 II-B-2
---------------------------------------------------------------------------------
II-B-3 II-B-3
---------------------------------------------------------------------------------
II-B-4 II-B-4
---------------------------------------------------------------------------------
II-B-5 II-B-5
---------------------------------------------------------------------------------
II-B-6 II-B-6
---------------------------------------------------------------------------------
(C) For the REMIC V Regular Interest, the Class B-IO Certificates.
Relief Act: The Servicemembers Civil Relief Act, as amended, or
similar state law.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Scheduled
Payment thereof has been reduced due to the application of the Relief Act.
Remaining Excess Spread: With respect to any Distribution Date, the
Excess Spread remaining after the distribution of the Extra Principal
Distribution Amount for such Distribution Date.
Remaining Pre-Funded Amount: With respect to any Loan Group or
Sub-Loan Group, an amount equal to the Pre-Funded Amount for such Loan Group
or Sub-Loan Group minus the amount equal to 100% of the aggregate Stated
Principal Balance of the Subsequent Mortgage Loans transferred to such Loan
Group or Sub-Loan Group during the Pre-Funding Period.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC Administrator: The Trustee; provided that if the REMIC
Administrator is found by a court of competent jurisdiction to no longer be
able to fulfill its obligations as REMIC Administrator under this Agreement
the Servicer or Trustee acting as Servicer shall appoint a successor REMIC
Administrator, subject to assumption of the REMIC Administrator obligations
under this Agreement.
REMIC Interest: Any of the REMIC I, REMIC II, REMIC III, REMIC IV and
REMIC V Interests.
REMIC Opinion: An Opinion of Independent Counsel, to the effect that
the proposed action described therein would not, under the REMIC Provisions,
(i) cause any 2005-9 REMIC to fail to qualify as a REMIC while any regular
interest in such 2005-9 REMIC is outstanding, (ii) result in a tax on
prohibited transactions with respect to any 2005-9 REMIC or (iii) constitute
a taxable contribution to any 2005-9 REMIC after the Startup Day.
REMIC Provisions: The provisions of the federal income tax law
relating to REMICs, which appear at Sections 860A through 860G of the Code,
and related provisions and regulations promulgated thereunder, as the
foregoing may be in effect from time to time.
REMIC Regular Interest: Any of the REMIC I, REMIC II, REMIC III, REMIC
IV and REMIC V Regular Interests.
REMIC I: The segregated pool of assets, with respect to which a REMIC
election is made pursuant to this Agreement, consisting of:
(a) the Group II Mortgage Loans and the related Mortgage Files and
collateral securing such Group II Mortgage Loans,
(b) all payments on and collections in respect of the Group II
Mortgage Loans due after the Cut-off Date as shall be on deposit in the
Master Servicer Collection Account or in the Distribution Account and
identified as belonging to the Trust Fund,
(c) property that secured a Group II Mortgage Loan and that has been
acquired for the benefit of the Certificateholders by foreclosure or deed in
lieu of foreclosure,
(d) the hazard insurance policies and Primary Mortgage Insurance
Policies, if any, relating to the Group II Mortgage Loans, and
(e) all proceeds of clauses (a) through (d) above.
REMIC I Available Distribution Amount: For each of the Sub-Loan Groups
in Loan Group II for any Distribution Date, the Available Funds for such
Sub-Loan Group, or, if the context so requires the aggregate of the Available
Funds for all Sub-Loan Groups in Loan Group II.
REMIC I Distribution Amount: For any Distribution Date, the REMIC I
Available Distribution Amount shall be distributed to the REMIC I Regular
Interests and the Class R Certificates in respect of Component I thereof in
the following amounts and priority:
(a) To the extent of the REMIC I Available Distribution Amount
for Sub-Loan Group II-1:
(i) first, to Class Y-1 and Class Z-1 Regular Interests and
Component I of the Class R Certificates, concurrently, the
Uncertificated Interest for such Classes remaining unpaid from previous
Distribution Dates, pro rata according to their respective shares of
such unpaid amounts;
(ii) second, to the Class Y-1 and Class Z-1 Regular Interests
and Component I of the Class R Certificates, concurrently, the
Uncertificated Interest for such Classes for the current Distribution
Date, pro rata according to their respective Uncertificated Interest;
(iii) third, to Component I of the Class R Certificates, until
the Uncertificated Principal Balance thereof has been reduced to zero;
and
(iv) fourth, to the Class Y-1 and Class Z-1 Regular Interests,
the Class Y-1 Principal Distribution Amount and the Class Z-1 Principal
Distribution Amount, respectively.
(b) To the extent of the REMIC I Available Distribution Amount for
Sub-Loan Group II-2:
(i) first, to the Class Y-2 and Class Z-2 Regular Interests,
concurrently, the Uncertificated Interest for such Classes remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Class Y-2 and Class Z-2 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
(iii) third, to the Class Y-2 and Class Z-2 Regular Interests,
the Class Y-2 Principal Distribution Amount and the Class Z-2 Principal
Distribution Amount, respectively.
(c) To the extent of the REMIC I Available Distribution Amount for
Sub-Loan Group II-3:
(i) first, to the Class Y-3 and Class Z-3 Regular Interests,
concurrently, the Uncertificated Interest for such Classes remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Class Y-3 and Class Z-3 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
(iii) third, to the Class Y-3 and Class Z-3 Regular Interests,
the Class Y-3 Principal Distribution Amount and the Class Z-3 Principal
Distribution Amount, respectively.
(d) To the extent of the REMIC I Available Distribution Amount for
Sub-Loan Group II-4:
(i) first, to the Class Y-4 and Class Z-4 Regular Interests,
concurrently, the Uncertificated Interest for such Classes remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Class Y-4 and Class Z-4 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
(iii) third, to the Class Y-4 and Class Z-4 Regular Interests,
the Class Y-4 Principal Distribution Amount and the Class Z-4 Principal
Distribution Amount, respectively.
(e) To the extent of the REMIC I Available Distribution Amount for
Sub-Loan Group II-5:
(i) first, to the Class Y-5 and Class Z-5 Regular Interests,
concurrently, the Uncertificated Interest for such Classes remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Class Y-5 and Class Z-5 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
(iii) third, to the Class Y-5 and Class Z-5 Regular Interests,
the Class Y-5 Principal Distribution Amount and the Class Z-5 Principal
Distribution Amount, respectively.
(f) To the extent of the REMIC I Available Distribution Amount for
Sub-Loan Group II-6:
(i) first, to the Class Y-6 and Class Z-6 Regular Interests,
concurrently, the Uncertificated Interest for such Classes remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Class Y-6 and Class Z-6 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
(iii) third, to the Class Y-6 and Class Z-6 Regular Interests,
the Class Y-6 Principal Distribution Amount and the Class Z-6 Principal
Distribution Amount, respectively.
(g) To the extent of the REMIC I Available Distribution Amounts for
Sub-Loan Group II-1, Sub-Loan Group II-2, Sub-Loan Group II-3, Sub-Loan Group
II-4, Sub-Loan Group II-5 or Sub-Loan Group II-6 for such Distribution Date
remaining after payment of the amounts pursuant to paragraphs (a), (b), (c),
(d), (e) and (f) of this definition of "REMIC I Distribution Amount":
(i) first, to each Class of Class Y and Class Z Regular
Interests, pro rata according to the amount of unreimbursed Realized
Losses allocable to principal previously allocated to each such Class;
provided, however, that any amounts distributed pursuant to this
paragraph (g)(i) of this definition of "REMIC I Distribution Amount"
shall not cause a reduction in the Uncertificated Principal Balances of
any of the Class Y and Class Z Regular Interests; and
(ii) second, to the Component I of the Class R Certificates, the
Residual Distribution Amount for Component I of the Class R
Certificates for such Distribution Date.
REMIC I Interests: The REMIC I Regular Interests and Component I of
the Class R Certificates.
REMIC I Regular Interest: Any of the separate non-certificated
beneficial ownership interests in REMIC I set forth in Section 5.01(c)(i) and
issued hereunder and designated as a "regular interest" in REMIC I. Each
REMIC I Regular Interest shall accrue interest at the Uncertificated
Pass-Through Rate specified for such REMIC I Interest in Section 5.01(c)(i),
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in Section 5.01(c)(i). The designations for
the respective REMIC I Regular Interests are set forth in Section 5.01(c)(i).
REMIC II: The segregated pool of assets, with respect to which a REMIC
election is made pursuant to this Agreement, consisting of: (a)the Group I
Mortgage Loans and the related Mortgage Files and collateral securing such
Group I Mortgage Loans, (b) all payments on and collections in respect of
the Group I Mortgage Loans due after the Cut off Date as shall be on deposit
in the Master Servicer Collection Account or in the Distribution Account and
identified as belonging to the Trust Fund, (c) property that secured a Group
I Mortgage Loan and that has been acquired for the benefit of the
Certificateholders by foreclosure or deed in lieu of foreclosure, (d) the
hazard insurance policies and Primary Mortgage Insurance Policies, if any,
related to the Group I Mortgage Loans and (e) all proceeds of clauses (a)
through (d) above.
REMIC II Available Distribution Amount: For any Distribution Date, the
Available Funds for Loan Group II.
REMIC II Distribution Amount: For any Distribution Date, the REMIC II
Available Distribution Amount shall be distributed by REMIC II to REMIC IV on
account of the REMIC II Regular Interests and to the Class R Certificates in
respect of Component II thereof, in the following order of priority:
1. to REMIC IV as the holder of REMIC II Regular Interest LT1, REMIC
II Regular Interest LT2, REMIC II Regular Interest LT3 and REMIC II Regular
Interest LT4, pro rata, in an amount equal to (A) their Uncertificated
Accrued Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates; and
2. on each Distribution Date, to REMIC IV as the holder of the
REMIC II Regular Interests, in an amount equal to the remainder of the REMIC
II Available Distribution Amount after the distributions made pursuant to
clause (i) above, allocated as follows:
(A) in respect of the REMIC II Regular Interest LT2, REMIC II
Regular Interest LT3 and REMIC II Regular Interest LT4, their
respective Principal Distribution Amounts;
(B) in respect of the REMIC II Regular Interest LT1 any
remainder until the Uncertificated Principal Balance thereof is reduced
to zero;
(C) any remainder in respect of the REMIC II Regular Interest
LT2, REMIC II Regular Interest LT3 and REMIC II Regular Interest LT4,
pro rata according to their respective Uncertificated Principal
Balances as reduced by the distributions deemed made pursuant to (i)
above, until their respective Uncertificated Principal Balances are
reduced to zero; and
(D) any remaining amounts to the Holders of the Class R
Certificates in respect of Component II thereof.
REMIC II Interests: The REMIC II Regular Interests and Component II of
the Class R Certificates.
REMIC II Principal Reduction Amounts: For any Distribution Date, the
amounts by which the principal balances of the REMIC II Regular Interests
LT1, LT2, LT3 and LT4, respectively, will be reduced on such Distribution
Date by the allocation of Realized Losses and the distribution of principal,
determined as follows:
For purposes of the succeeding formulas the following symbols shall
have the meanings set forth below:
Y1 = the principal balance of the REMIC II Regular Interest 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 REMIC II Regular Interest 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 I Net WAC Cap Rate (stated as a monthly rate) after
giving effect to amounts distributed and Realized Losses allocated on the
prior Distribution Date.
R1 = the Group I Net WAC Cap Rate (stated as a monthly rate) after
giving effect to amounts to be distributed and Realized Losses to be
allocated on such Distribution Date.
α = (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 I Certificates,
other than the Class B-IO Certificates, of the product for each Class of (i)
the monthly interest rate (as limited by the Group I Net WAC Cap Rate, if
applicable) for such Class applicable for distributions to be made on such
Distribution Date and (ii) the aggregate Certificate Principal Balance for
such Class after distributions and the allocation of Realized Losses on the
prior Distribution Date and (B) R0*P0.
γ1 = the lesser of (A) the sum for all Classes of Group I
Certificates, other than the Class B-IO Certificates, of the product for each
Class of (i) the monthly interest rate (as limited by the Net WAC Cap Rate,
if applicable) for such Class applicable for distributions to be made on the
next succeeding Distribution Date and (ii) the aggregate Certificate
Principal Balance for such Class after distributions and the allocation of
Realized Losses to be made on such Distribution Date and (B) 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.
REMIC II Realized Losses: For any Distribution Date, Realized Losses on
the Group I Mortgage Loans for the related Due Period shall be allocated, as
follows: (i) the interest portion of Realized Losses, if any, shall be
allocated pro rata to accrued interest on the REMIC II Regular Interests to
the extent of such accrued interest, and (ii) any remaining interest portions
of Realized Losses and any principal portions of Realized Losses shall be
treated as principal portions of Realized Losses and allocated (i) to the
REMIC II Regular Interest LT2, REMIC II Regular Interest LT3 and REMIC II
Regular Interest LT4, pro rata according to their respective Principal
Reduction Amounts, provided that such allocation to each of the REMIC II
Regular Interest LT2, REMIC II Regular Interest LT3 and REMIC II Regular
Interest LT4 shall not exceed their respective Principal Reduction Amounts
for such Distribution Date, and (ii) any Realized Losses not allocated to any
of REMIC II Regular Interest LT2, REMIC II Regular Interest LT3 or REMIC II
Regular Interest LT4 pursuant to the proviso of clause (i) above shall be
allocated to the REMIC II Regular Interest LT1.
REMIC II Regular Interest: Any of the separate non-certificated
beneficial ownership interests in REMIC II set forth in Section 5.01(c)(ii)
and issued hereunder and designated as a "regular interest" in REMIC II.
Each REMIC II Regular Interest shall accrue interest at the Uncertificated
Pass-Through Rate specified for such REMIC II Interest in
Section 5.01(c)(ii), and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in
Section 5.01(c)(ii). The designations for the respective REMIC II Regular
Interests are set forth in Section 5.01(c)(ii).
REMIC II Regular Interest LT1: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated Pass-Through Rate, and that has such other terms as
are described herein.
REMIC II Regular Interest LT1 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT1
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT1 on such Distribution
Date.
REMIC II Regular Interest LT2: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated Pass-Through Rate, and that has such other terms as
are described herein.
REMIC II Regular Interest LT2 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT2
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT2 on such Distribution
Date.
REMIC II Regular Interest LT3: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated Pass-Through Rate, and that has such other terms as
are described herein.
REMIC II Regular Interest LT3 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT3
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT3 on such Distribution
Date.
REMIC II Regular Interest LT4: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated Pass-Through Rate, and that has such other terms as
are described herein.
REMIC II Regular Interest LT4 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT4
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT4 on such Distribution
Date.
REMIC III: That group of assets contained in the Trust Fund designated
as a REMIC consisting of the REMIC I Regular Interests and any proceeds
thereof.
REMIC III Available Distribution Amount: For any Distribution Date,
the amounts deemed distributed with respect to the REMIC I Regular Interests
pursuant to Section 6.07.
REMIC III Distribution Amount: For any Distribution Date, the REMIC
III Available Distribution Amount shall be distributed by REMIC III to REMIC
IV on account of the REMIC III Regular Interests and to the Class R
Certificates in respect of Component III thereof, as follows: to each REMIC
III Regular Interest in respect of Uncertificate Accrued Interest thereon and
the Uncertificated Principal Balance thereof, the amount distributed in
respect of interest and principal on the Related Class or Classes of
Certificates (with such amounts having the same character as interest or
principal with respect to the REMIC III Regular Interest as they have with
respect to the Related Certificate or Certificates) with the following
exception: No amount paid to any Certificate in respect of any Basis Risk
Shortfall Amount or Basis Risk Shortfall Carryforward Amount shall be
included in the amount paid in respect of a related REMIC III Regular
Interest. Any remaining amount of the REMIC III Available Distribution
Amount shall be distributed to the holders of the Class R Certificates in
respect of Component III thereof.
REMIC III Interests: The REMIC III Regular Interests and Component III
of the Class R Certificates.
REMIC III Regular Interest: Any of the separate non-certificated
beneficial ownership interests in REMIC III set forth in Section 5.01(c)(iii)
and issued hereunder and designated as a "regular interest" in REMIC III.
Each REMIC III Regular Interest shall accrue interest at the Uncertificated
Pass-Through Rate specified for such REMIC III Interest in
Section 5.01(c)(iii), and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in
Section 5.01(c)(iii). The designations for the respective REMIC III Regular
Interests are set forth in Section 5.01(c)(iii).
REMIC IV: That group of assets contained in the Trust Fund designated
as a REMIC consisting of the REMIC III Regular Interests and any proceeds
thereof.
REMIC IV Available Distribution Amount: For any Distribution Date, the
amounts deemed distributed with respect to the REMIC III Regular Interests
pursuant to Section 6.07.
REMIC IV Distribution Amount: For any Distribution Date, the REMIC IV
Available Distribution Amount shall be deemed distributed by REMIC IV to the
holders of the Certificates (other than the Class B-IO Certificates) on
account of the REMIC IV Regular Interests (other than REMIC IV Regular
Interests B-IO-I and B-IO-P), to REMIC V on account of REMIC IV Regular
Interests B-IO-I and B-IO-P, and to the Class R Certificates in respect of
Component IV thereof, as follows: to each REMIC IV Regular Interest in
respect of Uncertificated Interest thereon and the Uncertificated Principal
Balance thereof, the amount distributed in respect of interest and principal
on the Related Class or Classes of Certificates (with such amounts having the
same character as interest or principal with respect to the REMIC IV Regular
Interest as they have with respect to the Related Certificate or
Certificates) with the following exceptions: (1) No amount paid to any
Certificate in respect of any Basis Risk Shortfall Amount or Basis Risk
Shortfall Carryforward Amount shall be included in the amount paid in respect
of a related REMIC IV Regular Interest; and (2) amounts paid in respect of
Basis Risk Shortfall Amounts and Basis Risk Shortfall Carryforward Amounts to
the extent not derived from any Cap Contract Payment Amount shall be deemed
paid with respect to REMIC IV Regular Interest B-IO-I in respect of accrued
and unpaid interest thereon. Any remaining amount of the REMIC IV Available
Distribution Amount shall be distributed to the holders of the Class R
Certificates in respect of Component IV thereof.
REMIC IV Interests: The REMIC IV Regular Interests and Component IV of
the Class R Certificates.
REMIC IV Regular Interest: Any of the separate non-certificated
beneficial ownership interests in REMIC IV set forth in Section 5.01(c)(iv)
and issued hereunder and designated as a "regular interest" in REMIC IV.
Each REMIC IV Regular Interest shall accrue interest at the Uncertificated
Pass-Through Rate specified for such REMIC IV Interest in
Section 5.01(c)(iv), and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in
Section 5.01(c)(iv). The designations for the respective REMIC IV Regular
Interests are set forth in Section 5.01(c)(iv).
REMIC V: That group of assets contained in the Trust Fund designated
as a REMIC consisting of REMIC IV Regular Interests B-IO-I and B-IO-P and any
proceeds thereof.
REMIC V Available Distribution Amount: For any Distribution Date, the
amounts deemed distributed with respect to REMIC IV Regular Interests B-IO-I
and B-IO-P pursuant to Section 6.07.
REMIC V Distribution Amount: For any Distribution Date, the REMIC V
Available Distribution Amount shall be deemed distributed by REMIC V to the
holder of the Class B-IO Certificates on account of REMIC IV Regular
Interests B-IO-I and B-IO-P.
REMIC V Interests: The REMIC V Regular Interest and the Class R-X
Certificates.
REMIC V Regular Interest: The separate non-certificated beneficial
ownership interest in REMIC V set forth in Section 5.01(c)(v) and issued
hereunder and designated as a "regular interest" in REMIC V. The REMIC V
Regular Interest shall accrue interest at the Uncertificated Pass-Through
Rate specified for such REMIC V Interest in Section 5.01(c)(v). The
designation for the REMIC V Regular Interest is set forth in
Section 5.01(c)(v).
REO Property: A Mortgaged Property acquired in the name of the
Trustee, for the benefit of Certificateholders, by foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan (or any property
acquired with respect thereto) required to be repurchased by the Seller
pursuant to the Mortgage Loan Purchase Agreement, a Subsequent Mortgage Loan
Purchase Agreement or Article II of this Agreement, an amount equal to the
excess of (i) the sum of (a) 100% of the Outstanding Principal Balance of
such Mortgage Loan as of the date of repurchase (or if the related Mortgaged
Property was acquired with respect thereto, 100% of the Outstanding Principal
Balance at the date of the acquisition), (b) accrued but unpaid interest on
the Outstanding Principal Balance at the related Mortgage Interest Rate,
through and including the last day of the month of repurchase and (c) any
costs and damages (if any) incurred by the Trust in connection with any
violation of such Mortgage Loan of any predatory or abusive lending laws over
(ii) any portion of the Master Servicing Compensation, Servicing Fee, Monthly
Advances and advances payable to the purchaser of the Mortgage Loan (if any).
Repurchase Proceeds: The Repurchase Price in connection with any
repurchase of a Mortgage Loan by the Seller and any cash deposit in
connection with the substitution of a Mortgage Loan, in each case in
accordance with the Mortgage Loan Purchase Agreement.
Request for Release: A request for release in the form attached hereto
as Exhibit D.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under
this Agreement with respect to such Mortgage Loan.
Reserve Fund: The separate trust account created and maintained by the
Securities Administrator pursuant to Section 4.06 hereof.
Residual Certificate: Any of the Class R Certificates, consisting of
four components-Component I, Component II, Component III and
Component IV-respectively representing ownership of the sole class of
residual interest in each of REMIC I, REMIC II, REMIC III and REMIC IV, and
the Class R-X Certificates.
Responsible Officer: Any officer assigned to the Corporate Trust
Office of the Trustee or the Securities Administrator, as the case may be (or
any successor thereto), including any Vice President, Assistant Vice
President, Trust Officer, any Assistant Secretary, any trust officer or any
other officer of the Trustee or the Securities Administrator, as the case may
be, customarily performing functions similar to those performed by any of the
above designated officers and having direct responsibility for the
administration of this Agreement, and any other officer of the Trustee or the
Securities Administrator, as the case may be, to whom a matter arising
hereunder may be referred.
Rule 144A Certificate: The certificate to be furnished by each
purchaser of a Private Certificate (which is also a Physical Certificate)
which is a Qualified Institutional Buyer as defined under Rule 144A
promulgated under the Securities Act, substantially in the form set forth as
Exhibit F-2 hereto.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
and its successors in interest.
Scheduled Payment: With respect to any Mortgage Loan and any Due
Period, the scheduled payment or payments of principal and interest due
during such Due Period on such Mortgage Loan which either is payable by a
Mortgagor in such Due Period under the related Mortgage Note or, in the case
of REO Property, would otherwise have been payable under the related Mortgage
Note.
Scheduled Principal: The principal portion of any Scheduled Payment.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, National Association, in
its capacity as paying agent or securities administrator (as applicable)
hereunder, or its successor in interest, or any successor securities
administrator or paying agent appointed as herein provided.
Securities Legend: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING
THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT
AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB,
WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE
OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY
THE SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE
SECURITIES ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND
ANY OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY NOT BE ACQUIRED
DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (A "PLAN") THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR BY A PERSON
USING "PLAN ASSETS" OF A PLAN, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE
SECURITIES ADMINISTRATOR WITH AN OPINION OF COUNSEL FOR THE BENEFIT OF THE
TRUSTEE, MASTER SERVICER AND THE SECURITIES ADMINISTRATOR AND ON WHICH THEY
MAY RELY WHICH IS SATISFACTORY TO THE SECURITIES ADMINISTRATOR THAT THE
PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE
TRUSTEE OR THE SECURITIES ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
Security Instrument: A written instrument creating a valid first lien
on a Mortgaged Property securing a Mortgage Note, which may be any applicable
form of mortgage, deed of trust, deed to secure debt or security deed,
including any riders or addenda thereto.
Seller: EMC, as mortgage loan seller under the Mortgage Loan Purchase
Agreement and any Subsequent Mortgage Loan Purchase Agreement.
Senior Certificates: The Class I-1A-1, Class I-1A-2, Class II-1A-1,
Class II-1A-2, Class II-2A-1, Class II-3A-1, Class II-3A-2, Class II-4A-1,
Class II-5A-1, Class II-5A-2, Class II-6A-1 and Class II-6A-2 Certificates.
Senior Enhancement Percentage: As to each Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the sum of (i)
the aggregate of the Certificate Principal Balance of the Class I-M-1, Class
I-M-2, Class I-B-1, Class I-B-2 and Class I-B-3 Certificates and (ii) the
Overcollateralization Amount, in each case after taking into account the
distribution of the related Principal Distribution Amounts on such
Distribution Date, and the denominator of which is the aggregate Stated
Principal Balance of the Group I Mortgage Loans for such Distribution Date.
Senior Optimal Principal Amount: With respect to each Distribution
Date and a Certificate Group related to a Sub-Loan Group in Loan Group II, an
amount equal to the sum, without duplication, of the following (but in no
event greater than the aggregate Certificate Principal Balances of the
related Certificate Group immediately prior to such Distribution Date):
(i) the related Senior Percentage of the principal portion of
all Scheduled Payments due on each Outstanding Mortgage Loan in the related
Sub-Loan Group on the related Due Date as specified in the amortization
schedule at the time applicable thereto (after adjustments for previous
Principal Prepayments but before any adjustment to such amortization schedule
by reason of any bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period if the related Distribution Date occurs prior
to the Cross-over Date);
(ii) the related Senior Prepayment Percentage of the Stated
Principal Balance of Mortgage Loan in the related Sub-Loan Group which was
the subject of a Principal Prepayment in full received by the Master Servicer
during the related Prepayment Period;
(iii) the related Senior Prepayment Percentage of amount of all
Principal Prepayments in part allocated to principal received by the Master
Servicer during the related Prepayment Period in respect to each Mortgage
Loan in the related Sub-Loan Group;
(iv) the lesser of (a) the related Senior Prepayment Percentage
of the sum of (A) all Net Liquidation Proceeds allocable to principal
received in respect of each Mortgage Loan in the related Sub-Loan Group that
became a Liquidated Mortgage Loan during the related Prepayment Period (other
than Mortgage Loans described in the immediately following clause (B)) and
all Subsequent Recoveries received in respect of each Liquidated Mortgage
Loan in the related Sub-Loan Group during the related Due Period and (B) the
Stated Principal Balance of each such Mortgage Loan purchased by an insurer
from the Trust during the related Prepayment Period pursuant to the related
Primary Mortgage Insurance Policy, if any, or otherwise and (b) the related
Senior Percentage of the sum of (A) the Stated Principal Balance of each
Mortgage Loan in the related Sub-Loan Group which became a Liquidated
Mortgage Loan during the related Prepayment Period (other than the Mortgage
Loans described in the immediately following clause (B)) and all Subsequent
Recoveries received in respect of each Liquidated Mortgage Loan in the
related Sub-Loan Group during the related Due Period and (B) the Stated
Principal Balance of each such Mortgage Loan that was purchased by an insurer
from the Trust during the related Prepayment Period pursuant to the related
Primary Mortgage Insurance Policy, if any or otherwise;
(v) any amount allocated to the Available Funds of the related
Sub-Loan Group pursuant to Section 6.01.2(a)(G); and
(vi) the related Senior Prepayment Percentage of the sum of (a)
the Stated Principal Balance of each Mortgage Loan in the related Sub-Loan
Group that was repurchased by the Seller in connection with such Distribution
Date and (b) the excess, if any, of the Stated Principal Balance of a
Mortgage Loan in the related Sub-Loan Group that has been replaced by the
Seller with a substitute Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement in connection with such Distribution Date over the Stated Principal
Balance of such substitute Mortgage Loan.
Senior Percentage: With respect to each Certificate Group related to a
Sub-Loan Group in Loan Group II, initially 92.55%. With respect to any
Distribution Date and a Certificate Group related to a Sub-Loan Group in Loan
Group II, the lesser of (i) 100% and (ii) the percentage obtained by dividing
the aggregate Certificate Principal Balance of the Senior Certificates in
such Certificate Group immediately preceding such Distribution Date by the
aggregate Stated Principal Balance of the Mortgage Loans in the related
Sub-Loan Group as of the beginning of the related Due Period.
Senior Prepayment Percentage: With respect to a Certificate Group
related to a Sub-Loan Group in Loan Group II and any Distribution Date
occurring during the periods set forth below, as follows:
Period (dates inclusive) Senior Prepayment Percentage
October 2005 - September 2012 100%
October 2012 - September 2013 Senior Percentage for the related
Certificate Group plus 70% of the
Subordinate Percentage for the related
Sub-Loan Group.
October 2013 - September 2014 Senior Percentage for the related
Certificate Group plus 60% of the
Subordinate Percentage for the related
Sub-Loan Group.
October 2014 - September 2015 Senior Percentage for the related
Certificate Group plus 40% of the
Subordinate Percentage for the related
Sub-Loan Group.
October 2015 - September 2016 Senior Percentage for the related
Certificate Group plus 20% of the
Subordinate Percentage for the related
Sub-Loan Group.
October 2016 and thereafter Senior Percentage for the related
Certificate Group.
In addition, no reduction of the Senior Prepayment Percentage for the
related Certificate Group shall occur on any Distribution Date unless, as of
the last day of the month preceding such Distribution Date, (A) the aggregate
Stated Principal Balance of the Group II Mortgage Loans in all Sub-Loan
Groups in Loan Group II delinquent 60 days or more (including for this
purpose any such Group II Mortgage Loans in foreclosure and Group II Mortgage
Loans with respect to which the related Mortgaged Property has been acquired
by the Trust), averaged over the last six months, as a percentage of the sum
of the aggregate Certificate Principal Balance of the Group II Subordinate
Certificates does not exceed 50%; and (B) cumulative Realized Losses on the
Group II Mortgage Loans in all Sub-Loan Groups in Loan Group II do not exceed
(a) 30% of the Original Group II Subordinate Principal Balance if such
Distribution Date occurs between and including October 2012 and September
2013, (b) 35% of the Original Group II Subordinate Principal Balance if such
Distribution Date occurs between and including October 2013 and September
2014, (c) 40% of the Original Group II Subordinate Principal Balance if such
Distribution Date occurs between and including October 2014 and September
2015, (d) 45% of the Original Group II Subordinate Principal Balance if such
Distribution Date occurs between and including October 2015 and September
2016, and (e) 50% of the Original Group II Subordinate Principal Balance if
such Distribution Date occurs during or after October 2016.
In addition, if on any Distribution Date the weighted average of the
Subordinate Percentages for such Distribution Date is equal to or greater
than two times the weighted average of the initial Subordinate Percentages,
and (a) the aggregate Stated Principal Balance of the Group II Mortgage Loans
for all Sub-Loan Groups delinquent 60 days or more (including for this
purpose any such Mortgage Loans in foreclosure and such Group II Mortgage
Loans with respect to which the related Mortgaged Property has been acquired
by the Trust), averaged over the last six months, as a percentage of the
aggregate Certificate Principal Balance of the Group II Subordinate
Certificates does not exceed 50% and (b)(i) on or prior to the Distribution
Date in September 2008, cumulative Realized Losses on the Group II Mortgage
Loans for all Sub-Loan Groups in Loan Group II as of the end of the related
Prepayment Period do not exceed 20% of the Original Group II Subordinate
Principal Balance and (ii) after the Distribution Date in September 2008
cumulative Realized Losses on the Group II Mortgage Loans for all Sub-Loan
Groups in Loan Group II as of the end of the related Prepayment Period do not
exceed 30% of the Original Group II Subordinate Principal Balance, then, the
Senior Prepayment Percentage for such Distribution Date will equal the Senior
Percentage for the related Certificate Group; provided, however, if on such
Distribution Date the Subordinate Percentage is equal to or greater than two
times the initial Subordinate Percentage on or prior to the Distribution Date
occurring in September 2008 and the above delinquency and loss tests are met,
then the Senior Prepayment Percentage for the related Certificate Group for
such Distribution Date will equal the related Senior Percentage plus 50% of
the related Subordinate Percentage.
Notwithstanding the foregoing, if on any Distribution Date the
percentage, the numerator of which is the aggregate Certificate Principal
Balance of the Group II Senior Certificates immediately preceding such
Distribution Date, and the denominator of which is the Stated Principal
Balance of the Group II Mortgage Loans as of the beginning of the related Due
Period, exceeds such percentage as of the Cut-Off Date, the Senior Prepayment
Percentage for the Senior Certificates will equal 100%.
Servicers: Each of Countrywide, EMC, EverHome, GreenPoint,
Harbourside, HomeBanc, National City, PHH, SunTrust and Xxxxxxxxxx and their
respective permitted successors and assigns.
Servicer Remittance Date: With respect to each Mortgage Loan and the
applicable Servicer, the date set forth in the related Servicing Agreement.
Servicing Agreement: Each of the Countrywide Servicing Agreement, EMC
Servicing Agreement, EverHome Servicing Agreement, GreenPoint Servicing
Agreement, Harbourside Servicing Agreement, PHH Servicing Agreements,
SunTrust Servicing Agreement, and Xxxxxxxxxx Servicing Agreement.
Servicing Fee: As to any Mortgage Loan and Distribution Date, an
amount equal to the product of (i) the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the preceding calendar month and (ii) the
related Servicing Fee Rate.
Servicing Fee Rate: As to any Mortgage Loan, a per annum rate as set
forth in the Mortgage Loan Schedule.
Servicing Officer: The President or a Vice President or Assistant Vice
President or other authorized officer of the Master Servicer having direct
responsibility for the administration of this Agreement, and any other
authorized officer of the Master Servicer to whom a matter arising hereunder
may be referred.
Special Hazard Loss: A Realized Loss attributable to damage or a direct
physical loss suffered by a mortgaged property (including any Realized Loss
due to the presence or suspected presence of hazardous wastes or substances
on a mortgaged property) other than any such damage or loss covered by a
hazard policy or a flood insurance policy required to be maintained in
respect of such mortgaged property under the Agreement or any loss due to
normal wear and tear or certain other causes.
Startup Day: September 30, 2005.
Stated Principal Balance: With respect to any Group I Mortgage Loan or
related REO Property and any Distribution Date, the Outstanding Principal
Balance thereof as of the Cut-off Date minus the sum of (i) the principal
portion of the Scheduled Payments due with respect to such Mortgage Loan
during each Due Period ending prior to such Distribution Date (and
irrespective of any delinquency in their payment), (ii) all Principal
Prepayments with respect to such Mortgage Loan received prior to or during
the related Prepayment Period, and all Liquidation Proceeds to the extent
applied by the related Servicer as recoveries of principal in accordance with
this Agreement or the applicable Servicing Agreement with respect to such
Mortgage Loan, that were received by the related Servicer as of the close of
business on the last day of the Prepayment Period related to such
Distribution Date and (iii) any Realized Losses on such Mortgage Loan
incurred prior to or during the related Prepayment Period. The Stated
Principal Balance of a Liquidated Mortgage Loan equals zero. References
herein to the Stated Principal Balance of a Loan Group or Sub-Loan Group at
any time shall mean the aggregate Stated Principal Balance of all Mortgage
Loans in such Loan Group or Sub-Loan Group.
With respect to any Group II Mortgage Loan on any Distribution Date,
(i) the unpaid principal balance of such Mortgage Loan as of the close of
business on the related Due Date (taking account of the principal payment to
be made on such Due Date and irrespective of any delinquency in its payment),
as specified in the amortization schedule at the time relating thereto
(before any adjustment to such amortization schedule by reason of any
bankruptcy or similar proceeding occurring after the Cut-off Date (other than
a Deficient Valuation) or any moratorium or similar waiver or grace period)
and less (ii) any Principal Prepayments (including the principal portion of
Net Liquidation Proceeds) received during or prior to the related Prepayment
Period; provided that the Stated Principal Balance of a Liquidated Mortgage
Loan is zero.
Stepdown Date: The earlier to occur of (i) the Distribution Date on
which the Certificate Principal Balance of the Class I-A Certificates has
been reduced to zero and (ii) the later to occur of (a) the Distribution Date
in October 2008 and (b) the first Distribution Date on which the sum of the
aggregate Certificate Principal Balance of the Class I-M-1, Class I-M-2,
Class I-B-1, Class I-B-2, and Class I-B-3 Certificates and the
Overcollateralization Amount divided by the Stated Principal Balance of the
Mortgage Loans for such Distribution Date is greater than or equal to 19.20%.
Sub-Loan Group: Any of Sub-Loan Group II-1, Sub-Loan Group II-2,
Sub-Loan Group II-3, Sub-Loan Group II-4, Sub-Loan Group II-5 or Sub-Loan
Group II-6, as applicable.
Sub-Loan Group II-1: The group of Mortgage Loans designated as
belonging to Sub-Loan Group II-1 on the Mortgage Loan Schedule and any
Subsequent Mortgage Loans added to Sub-Loan Group II-1.
Sub-Loan Group II-1 Certificates: The Class II-1A-1 Certificates and
Class II-1A-2 Certificates.
Sub-Loan Group II-2: The group of Mortgage Loans designated as
belonging to Sub-Loan Group II-2 on the Mortgage Loan Schedule and any
Subsequent Mortgage Loans added to Sub-Loan Group II-2.
Sub-Loan Group II-2 Certificates: The Class II-2A-1 Certificates.
Sub-Loan Group II-3: The group of Mortgage Loans designated as
belonging to Sub-Loan Group II-3 on the Mortgage Loan Schedule and any
Subsequent Mortgage Loans added to Sub-Loan Group II-3.
Sub-Loan Group II-3 Certificates: The Class II-3A-1 Certificates and
Class II-3A-2 Certificates.
Sub-Loan Group II-4: The group of Mortgage Loans designated as
belonging to Sub-Loan Group II-4 on the Mortgage Loan Schedule and any
Subsequent Mortgage Loans added to Sub-Loan Group II-4.
Sub-Loan Group II-4 Certificates: The Class II-4A-1 Certificates.
Sub-Loan Group II-5: The group of Mortgage Loans designated as
belonging to Sub-Loan Group II-5 on the Mortgage Loan Schedule and any
Subsequent Mortgage Loans added to Sub-Loan Group II-5.
Sub-Loan Group II-5 Certificates: The Class II-5A-1 Certificates and
Class II-5A-2 Certificates.
Sub-Loan Group II-6: The group of Mortgage Loans designated as
belonging to Sub-Loan Group II-6 on the Mortgage Loan Schedule and any
Subsequent Mortgage Loans added to Sub-Loan Group II-6.
Sub-Loan Group II-6 Certificates: The Class II-6A-1 Certificates and
Class II-6A-2 Certificates.
Subordinate Certificate Writedown Amount: With respect to the Group II
Subordinate Certificates and as to any Distribution Date, the amount by which
(i) the sum of the Certificate Principal Balances of the Group II
Certificates (after giving effect to the distribution of principal and the
allocation of applicable Realized Losses in reduction of the Certificate
Principal Balances of the Group II Certificates on such Distribution Date)
exceeds (y) the aggregate Stated Principal Balances of the Group II Mortgage
Loans on the Due Date related to such Distribution Date.
Subordinate Certificates: The Group I Subordinate Certificates and the
Group II Subordinate Certificates.
Subordinate Optimal Principal Amount: With respect to any Distribution
Date and any Sub-Loan Group in Loan Group II, an amount equal to the sum,
without duplication, of the following (but in no event greater than the
aggregate Certificate Principal Balance of the Group II Subordinate
Certificates immediately prior to such Distribution Date):
(i) the related Subordinate Percentage of the principal portion of
all Scheduled Payments due on each Outstanding Mortgage Loan in the related
Sub-Loan Group on the related Due Date as specified in the amortization
schedule at the time applicable thereto (after adjustment for previous
Principal Prepayments but before any adjustment to such amortization schedule
by reason of any bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period);
(ii) the related Subordinate Prepayment Percentage of the Stated
Principal Balance of each Mortgage Loan in the related Sub-Loan Group that
was the subject of a Principal Prepayment in full received by the Master
Servicer during the related Prepayment Period;
(iii) the related Subordinate Prepayment Percentage of the amount of
all Principal Prepayments in part received by the Master Servicer in respect
to the Mortgage Loan in the related Sub-Loan Group during the related
Prepayment Period;
(iv) the excess, if any, of (a) all Net Liquidation Proceeds allocable
to principal received during the related Prepayment Period in respect of each
Liquidated Mortgage Loan in the related Sub-Loan Group and all Subsequent
Recoveries received in respect of each Liquidated Mortgage Loan during the
related Due Period over (b) the sum of the amounts distributable to the
Senior Certificates in the related Certificate Group pursuant to clause (iv)
of the definition of Senior Optimal Principal Amount on such Distribution
Date;
(v) the related Subordinate Prepayment Percentage of the sum of (a)
the Stated Principal Balance of each Mortgage Loan in the related Sub-Loan
Group that was purchased by the Seller in connection with such Distribution
Date and (b) the difference, if any, between the Stated Principal Balance of
a Mortgage Loan in the related Sub-Loan Group that has been replaced by the
Seller with a Substitute Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement in connection with such Distribution Date over the Stated Principal
Balance of such Substitute Mortgage Loan; and
(vi) on the Distribution Date on which the Certificate Principal
Balances of the Senior Certificates in the related Certificate Group have all
been reduced to zero, 100% of the Senior Optimal Principal Amount for the
related Sub-Loan Group. After the aggregate Certificate Principal Balance of
the Subordinate Certificates has been reduced to zero, the Subordinate
Optimal Principal Amount shall be zero.
Subordinate Percentage: With respect to each Sub-Loan Group included
in Loan Group II on any Distribution Date, 100% minus the Senior Prepayment
Percentage for the related Certificate Group.
Subordinate Prepayment Percentage: With respect to each Loan Group or
Sub-Loan Group on any Distribution Date, 100% minus the Senior Prepayment
Percentage for the related Certificate Group.
Subsequent Cut-off Date: With respect to the Subsequent Mortgage Loans
sold to the Trust pursuant to a Subsequent Transfer Instrument, the later of
(i) the first day of the month in which the related Subsequent Transfer Date
occurs or (ii) the date of origination of such Mortgage Loan.
Subsequent Mortgage Loans: The Mortgage Loans which will be acquired by
the Trust during the Pre-Funding Period with amounts on deposit in the
Pre-Funding Account, which Mortgage Loans will be held as part of the Trust
Fund.
Subsequent Mortgage Loan Purchase Agreement: The agreements between
EMC, as seller, and Structured Asset Mortgage Investments II Inc., as
purchaser, and all amendments thereof and supplements thereto, regarding the
transfer of the Subsequent Mortgage Loans by EMC to Structured Asset Mortgage
Investments II Inc., a form of which is attached as Exhibit K.
Subsequent Recoveries: As of any Distribution Date, amounts received
during the related Due Period by the Master Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 4.03) or surplus
amounts held by the Master Servicer to cover estimated expenses (including,
but not limited to, recoveries in respect of the representations and
warranties made by the Seller pursuant to the Mortgage Loan Purchase
Agreement) specifically related to a Liquidated Mortgage Loan or the
disposition of an REO Property prior to the related Prepayment Period that
resulted in a Realized Loss, after liquidation or disposition of such
Mortgage Loan.
Subsequent Transfer Date: With respect to each Subsequent Transfer
Instrument, the date on which the related Subsequent Mortgage Loans are sold
to the Trust.
Subsequent Transfer Instrument: Each Subsequent Transfer Instrument,
dated as of a Subsequent Transfer Date, executed by the Securities
Administrator at the written direction of the Depositor, as seller
thereunder, and substantially in the form attached hereto as Exhibit L, by
which Subsequent Mortgage Loans are transferred to the Trust Fund.
Substitute Mortgage Loan: A mortgage loan tendered to the Trustee
pursuant to the related Servicing Agreement, the Mortgage Loan Purchase
Agreement, a Subsequent Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, in each case, (i) which has an Outstanding
Principal Balance not greater nor materially less than the Mortgage Loan for
which it is to be substituted; (ii) which has a Mortgage Interest Rate and
Net Rate not less than, and not materially greater than, such Mortgage Loan;
(iii) which has a maturity date not materially earlier or later than such
Mortgage Loan and not later than the latest maturity date of any Mortgage
Loan; (iv) which is of the same property type and occupancy type as such
Mortgage Loan; (v) which has a Loan-to-Value Ratio not greater than the
Loan-to-Value Ratio of such Mortgage Loan; (vi) which is current in payment
of principal and interest as of the date of substitution; (vii) as to which
the payment terms do not vary in any material respect from the payment terms
of the Mortgage Loan for which it is to be substituted and (viii) which has a
Gross Margin, Periodic Rate Cap and Maximum Lifetime Mortgage Rate no less
than those of such Mortgage Loan, has the same Index and interval between
Interest Adjustment Dates as such Mortgage Loan, and a Minimum Lifetime
Mortgage Rate no lower than that of such Mortgage Loan.
Substitution Adjustment Amount: The amount, if any, required to be paid
by the Mortgage Loan Seller to the Securities Administrator for deposit in
the Distribution Account pursuant to Section 2.04 in connection with the
substitution of a Mortgage Loan.
SunTrust: SunTrust Mortgage, Inc., and any successor thereto.
SunTrust Servicing Agreement: Purchase, Warranties and Servicing
Agreement, dated as of January 1, 2002, as amended by Addendum No. 1 dated
March 13, 2002, Addendum No. 2 dated August 23, 2002, Amendment No. 3 dated
January 13, 2003, Amendment No. 4 dated October 16, 2003, and Amendment No. 5
dated January 24, 2005, between SunTrust and EMC, attached hereto as Exhibit
H-9.
Tax Administration and Tax Matters Person: The Securities Administrator
and any successor thereto or assignee thereof shall serve as tax
administrator hereunder and as agent for the Tax Matters Person. The Holder
of the largest percentage interest of each Class of Residual Certificates
shall be the Tax Matters Person for the related REMIC, as more particularly
set forth in Section 9.12 hereof.
Termination Purchase Price: The price, calculated as set forth in
Section 10.01, to be paid in connection with the repurchase of the Mortgage
Loans pursuant to Section 10.01.
Trigger Event: With respect to any Distribution Date, an event that
exists if (i) the percentage obtained by dividing (x) the aggregate Stated
Principal Balance of the Group I Mortgage Loans that are 60 or more days
delinquent (including for this purpose any such Mortgage Loans in bankruptcy
or foreclosure and the Group I Mortgage Loans with respect to which the
related Mortgaged Property has been acquired by the Trust) by (y) the
aggregate Stated Principal Balance of the Group I Mortgage Loans in the
mortgage pool, in each case, as of the close of business on the last day of
the preceding calendar month, exceeds 34% of the Current Specified
Enhancement Percentage or (ii) the aggregate amount of Realized Losses on the
Group I Mortgage Loans since the Cut-Off Date as a percentage of the
aggregate Stated Principal Balance of the Group I Mortgage Loans as of the
Cut-Off Date exceeds the applicable percentage set forth below:
Months Percentage
25 - 36 0.35%
37 - 48 0.75%
49 - 60 1.15%
61 - 72 1.50%
73+ 1.75%
Trust Fund or Trust: The corpus of the trust created by this
Agreement, consisting of the Mortgage Loans and the other assets described in
Section 2.01(a).
Trustee: JPMorgan Chase Bank, National Association, or its successor
in interest, or any successor trustee appointed as herein provided.
2005-9 REMIC: Any of REMIC I, REMIC II, REMIC III, REMIC IV and REMIC V.
Uncertificated Interest: With respect to each REMIC Regular Interest on
each Distribution Date, an amount equal to one month's interest at the
related Uncertificated Pass-Through Rate on the Uncertificated Principal
Balance of such REMIC Regular Interest. In each case, for purposes of the
distributions, Uncertificated Interest will be reduced by the interest
portion of any Realized Losses and Net Interest Shortfalls allocated, with
respect to the REMIC I Regular Interests, to such REMIC Regular Interests
pursuant to the definition of Realized Losses, with respect to the REMIC II
Regular Interests, to such REMIC Regular Interests pursuant to the definition
of REMIC II Realized Losses and, with respect to the REMIC III Regular
Interests, REMIC IV Regular Interests and REMIC V Regular Interest, to the
Related Classes of Certificates.
Uncertificated Pass-Through Rate: With respect to any Distribution Date
and REMIC Interest, the pass-through rate of each such REMIC Interest set
forth in Section 5.01(c).
Uncertificated Principal Balance: The amount of any REMIC Regular
Interest outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Principal Balance of each REMIC I Regular Interest shall
equal the amount set forth in Section 5.01(c)(i) as its Initial
Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall be
reduced by the sum of (i) the principal portion of Realized Losses allocated
to the REMIC I Regular Interests in accordance with the definition of
Realized Loss and (ii) the amounts deemed distributed on each Distribution
Date in respect of principal on the REMIC I Regular Interests pursuant to
Section 6.07. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC II Regular Interest shall equal the amount set forth in the
Section 5.01(c)(ii) hereto as its Initial Uncertificated Principal Balance.
On each Distribution Date, the Uncertificated Principal Balance of each
REMIC II Regular Interest shall be reduced, first, by the portion of Realized
Losses allocated in reduction of the Certificate Principal Balances thereof
on such Distribution Date pursuant to the definition of REMIC II Realized
Losses and, second, the amounts deemed distributed on each Distribution Date
in respect of principal on the REMIC II Regular Interests pursuant to Section
6.07. As of the Closing Date, the Uncertificated Principal Balance of each
REMIC III Regular Interest shall equal the amount set forth in the Section
5.01(c)(iii) hereto as its Initial Uncertificated Principal Balance. On each
Distribution Date, the Uncertificated Principal Balance of each REMIC III
Regular Interest shall be reduced, first, by the portion of Realized Losses
allocated in reduction of the Certificate Principal Balances of the Related
Classes of Certificates on such Distribution Date and, second, by all
distributions of principal made on such Related Classes of Certificates on
such Distribution Date. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC IV Regular Interest shall equal the amount set forth in
the Section 5.01(c)(iv) hereto as its Initial Uncertificated Principal
Balance. On each Distribution Date, the Uncertificated Principal Balance of
each REMIC IV Regular Interest shall be reduced, first, by the portion of
Realized Losses allocated in reduction of the Certificate Principal Balances
of the Related Classes of Certificates on such Distribution Date and, second,
by all distributions of principal made on such Related Classes of
Certificates on such Distribution Date. As of the Closing Date, the
Uncertificated Principal Balance of the REMIC V Regular Interest shall equal
the amount set forth in Section 5.01(c)(v) as its Initial Uncertificated
Principal Balance.
Undercollateralized Amount: With respect any Certificate Group in Loan
Group II and any Distribution Date, the excess of (i) the aggregate
Certificate Principal Balance of such Certificate Group over (ii) the
aggregate Stated Principal Balance of the Group II Mortgage Loans in the
related Sub-Loan Group.
Uninsured Cause: Any cause of damage to a Mortgaged Property or
related REO Property such that the complete restoration of such Mortgaged
Property or related REO Property is not fully reimbursable by the hazard
insurance policies required to be maintained pursuant the Servicing
Agreement, without regard to whether or not such policy is maintained.
United States Person: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or
under the laws of, the United States or any state thereof or the District of
Columbia (except, in the case of a partnership, to the extent provided in
regulations), provided that, for purposes solely of the Residual
Certificates, no partnership or other entity treated as a partnership for
United States federal income tax purposes shall be treated as a United States
Person unless all persons that own an interest in such partnership either
directly or through any entity that is not a corporation for United States
federal income tax purposes are United States Persons, or an estate whose
income is subject to United States federal income tax regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more such
United States Persons have the authority to control all substantial decisions
of the trust. To the extent prescribed in regulations by the Secretary of
the Treasury, which have not yet been issued, a trust which was in existence
on August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter 1 of the Code), and which was
treated as a United States person on August 20, 1996 may elect to continue to
be treated as a United States person notwithstanding the previous sentence.
Unpaid Realized Loss Amount: With respect to any Distribution Date and
a Class of Group I Certificates, is the excess of (i) Applied Realized Loss
Amounts with respect to such Class over (ii) the sum of all distributions in
reduction of the Applied Realized Loss Amounts on all previous Distribution
Dates. Any amounts distributed to a class of Group I Certificates in respect
of any Unpaid Realized Loss Amount will not be applied to reduce the
Certificate Principal Balance of such Class.
Xxxxxxxxxx: Union Federal Bank of Indianapolis, and any successor
thereto.
Xxxxxxxxxx Servicing Agreement: Amended and Restated Forward
Commitment Flow Mortgage Loan Purchase and Servicing Agreement dated as of
March 4, 2003, between Xxxxxxxxxx and EMC, attached hereto as Exhibit H-10.
ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
Section 2.01 Conveyance of Mortgage Loans to Trustee. (a) The Depositor
concurrently with the execution and delivery of this Agreement, sells,
transfers and assigns to the Trust without recourse all its right, title and
interest in and to (i) the Mortgage Loans identified in the Mortgage Loan
Schedule, including all interest and principal due with respect to the
Initial Mortgage Loans after the Cut-off Date and the Subsequent Mortgage
Loans after the related Subsequent Cut-off Date, but excluding any payments
of principal and interest due on or prior to the Cut-off Date or the related
Subsequent Cut-off Date; (ii) such assets as shall from time to time be
credited or are required by the terms of this Agreement to be credited to the
Master Servicer Collection Account, (iii) such assets relating to the
Mortgage Loans as from time to time may be held by the Servicers in Protected
Accounts, the Master Servicer in the Master Servicer Collection Account and
the Securities Administrator in the Distribution Account in the name of the
Trustee on behalf of the Trust for the benefit of the Certificateholders and
the Securities Administrator in the Cap Reserve Account in the name of the
Trustee on behalf of the Trust for the benefit of the Group I Offered
Certificateholders and the Class I-B-3 Certificateholders, (iv) any REO
Property, (v) the Required Insurance Policies and any amounts paid or payable
by the insurer under any Insurance Policy (to the extent the mortgagee has a
claim thereto), (vi) the Mortgage Loan Purchase Agreement and any Subsequent
Mortgage Loan Purchase Agreement to the extent provided in Section 2.03(a),
(vii) the rights with respect to the Servicing Agreements as assigned to the
Trustee on behalf of the Trust for the benefit of the Certificateholders by
the Assignment Agreements, (viii) such assets as shall from time to time be
credited or are required by the terms of this Agreement to be credited to the
Pre-Funding Account, the Interest Coverage Account, the Distribution Account
and the Cap Reserve Account and (ix) any proceeds of the foregoing. Although
it is the intent of the parties to this Agreement that the conveyance of the
Depositor's right, title and interest in and to the Mortgage Loans and other
assets in the Trust Fund pursuant to this Agreement shall constitute a
purchase and sale and not a loan, in the event that such conveyance is deemed
to be a loan, it is the intent of the parties to this Agreement that the
Depositor shall be deemed to have granted to the Trustee a first priority
perfected security interest in all of the Depositor's right, title and
interest in, to and under the Mortgage Loans and other assets in the Trust
Fund, and that this Agreement shall constitute a security agreement under
applicable law.
(b) In connection with the above transfer and assignment, the Seller hereby
deposits with the Trustee or the Custodian, as its agent, with respect to
each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse (A) to the order of
the Trustee or (B) in the case of a Mortgage Loan registered on the MERS
system, in blank, and in each case showing an unbroken chain of endorsements
from the originator thereof to the Person endorsing it to the Trustee, or
lost note affidavit together with a copy of the related Mortgage Note,
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan,
noting the presence of the MIN and language indicating that such Mortgage
Loan is a MOM Loan, which shall have been recorded (or if the original is not
available, a copy), with evidence of such recording indicated thereon (or if
clause (w) in the proviso below applies, shall be in recordable form),
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the
assignment (which may be in the form of a blanket assignment if permitted in
the jurisdiction in which the Mortgaged Property is located) to "JPMorgan
Chase Bank, National Association, as Trustee", with evidence of recording
with respect to each Mortgage Loan in the name of the Trustee thereon (or if
clause (w) in the proviso below applies or for Mortgage Loans with respect to
which the related Mortgaged Property is located in a state other than
Maryland, Tennessee, South Carolina, Mississippi and Florida, or an Opinion
of Counsel has been provided as set forth in this Section 2.01(b), shall be
in recordable form),
(iv) all intervening assignments of the Security Instrument, if applicable
and only to the extent available to the Depositor with evidence of recording
thereon,
(v) the original or a copy of the policy or certificate of primary mortgage
guaranty insurance, to the extent available, if any,
(vi) the original policy of title insurance or mortgagee's certificate of
title insurance or commitment or binder for title insurance, and
(vii) originals of all modification agreements, if applicable and available.
provided, however, that in lieu of the foregoing, the Depositor may deliver
the following documents, under the circumstances set forth below: (w) in
lieu of the original Security Instrument, assignments to the Trustee or
intervening assignments thereof which have been delivered, are being
delivered or will, upon receipt of recording information relating to the
Security Instrument required to be included thereon, be delivered to
recording offices for recording and have not been returned to the Depositor
in time to permit their delivery as specified above, the Depositor may
deliver a true copy thereof with a certification by the Depositor, on the
face of such copy, substantially as follows: "Certified to be a true and
correct copy of the original, which has been transmitted for recording"; (x)
in lieu of the Security Instrument, assignment to the Trustee or intervening
assignments thereof, if the applicable jurisdiction retains the originals of
such documents (as evidenced by a certification from the Depositor to such
effect) the Depositor may deliver photocopies of such documents containing an
original certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; and (y) the Depositor shall
not be required to deliver intervening assignments or Mortgage Note
endorsements between the Seller and the Depositor, and between the Depositor
and the Trustee; and provided, further, however, that in the case of Mortgage
Loans which have been prepaid in full after the Cut-off Date and prior to the
Closing Date, and in the case of Subsequent Mortgage Loans which have been
prepaid in full after the related Subsequent Cut-off Date and prior to the
related Subsequent Transfer Date, the Depositor, in lieu of delivering the
above documents, may deliver to the Trustee or the Custodian, as its agent, a
certification to such effect and shall deposit all amounts paid in respect of
such Mortgage Loans in the Master Servicer Collection Account on the Closing
Date or the related Subsequent Transfer Date, as the case may be. The
Depositor shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) to the
Trustee or the Custodian, as its agent, promptly after they are received.
The Depositor shall cause the Seller, at its expense, to cause each
assignment of the Security Instrument to the Trustee to be recorded not later
than 180 days after the Closing Date, unless (a) such recordation is not
required by the Rating Agencies or an Opinion of Counsel addressed to the
Trustee has been provided to the Trustee (with a copy to the Custodian) which
states that recordation of such Security Instrument is not required to
protect the interests of the Certificateholders in the related Mortgage Loans
or (b) MERS is identified on the Mortgage or on a properly recorded
assignment of the Mortgage as the mortgagee of record solely as nominee for
the Seller and its successor and assigns; provided, however, that each
assignment shall be submitted for recording by the Seller in the manner
described above, at no expense to the Trust or the Trustee or the Custodian,
as its agent, upon the earliest to occur of: (i) reasonable direction by the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 25% of the Trust, (ii) the occurrence of an Event of Default,
(iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to
the Seller and (iv) the occurrence of a servicing transfer as described in
Section 8.02 hereof. Notwithstanding the foregoing, if the Seller fails to
pay the cost of recording the assignments, such expense will be paid by the
Trustee and the Trustee shall be reimbursed for such expenses by the Trust in
accordance with Section 9.05.
Section 2.02 Acceptance of Mortgage Loans by Trustee. (a) The Trustee
acknowledges the sale, transfer and assignment of the Trust Fund to it (or
the Custodian, as its agent) by the Depositor and receipt of, subject to
further review and the exceptions which may be noted pursuant to the
procedures described below, and declares that it holds, the documents (or
certified copies thereof) delivered to it or the Custodian, as its agent,
pursuant to Section 2.01, and declares that it (or the Custodian, as its
agent) will continue to hold those documents and any amendments, replacements
or supplements thereto and all other assets of the Trust Fund delivered to it
(or the Custodian, as its agent) as Trustee in trust for the use and benefit
of all present and future Holders of the Certificates. On the Closing Date,
with respect to the Initial Mortgage Loans, or the Subsequent Transfer Date,
with respect to the Subsequent Mortgage Loans, the Custodian, with respect to
the Mortgage Loans, shall acknowledge with respect to each Mortgage Loan by
delivery to the Depositor and the Trustee of an Initial Certification receipt
of the Mortgage File, but without review of such Mortgage File, except to the
extent necessary to confirm that such Mortgage File contains the related
Mortgage Note or lost note affidavit. No later than 90 days after the
Closing Date (or within 90 days of a Subsequent Transfer Date, with respect
to the Subsequent Mortgage Loans), the Trustee agrees, for the benefit of the
Certificateholders, to review or cause to be reviewed by the Custodian on its
behalf (under the Custodial Agreement), each Mortgage File delivered to it
and to execute and deliver, or cause to be executed and delivered, to the
Depositor and the Trustee an Interim Certification. In conducting such
review, the Trustee or Custodian will ascertain whether all required
documents have been executed and received, and based on the Mortgage Loan
Schedule, whether those documents relate, determined on the basis of the
Mortgagor name, original principal balance and loan number, to the Mortgage
Loans it has received, as identified in the Mortgage Loan Schedule. In
performing any such review, the Trustee or the Custodian, as its agent, may
conclusively rely on the purported due execution and genuineness of any such
document and on the purported genuineness of any signature thereon. If the
Trustee or the Custodian, as its agent, finds any document constituting part
of the Mortgage File has not been executed or received, or to be unrelated,
determined on the basis of the Mortgagor name, original principal balance and
loan number, to the Initial Mortgage Loans identified in Exhibit B, or the
Subsequent Mortgage Loans identified on Exhibit 1 to the related Subsequent
Transfer Instrument, as the case may be, or to appear defective on its face
(a "Material Defect"), the Trustee or the Custodian, as its agent, shall
promptly notify the Seller. In accordance with the Mortgage Loan Purchase
Agreement or any Subsequent Mortgage Loan Purchase Agreement, as the case may
be, the Seller shall correct or cure any such defect within ninety (90) days
from the date of notice from the Trustee or the Custodian, as its agent, of
the defect and if the Seller fails to correct or cure the defect within such
period, and such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Trustee or the
Custodian, as its agent, shall enforce the Seller's obligation pursuant to
the Mortgage Loan Purchase Agreement or the Subsequent Mortgage Loan Purchase
Agreements, as the case may be, within 90 days from the Trustee's or the
Custodian's notification, to purchase such Mortgage Loan at the Repurchase
Price; provided that, if such defect would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3)(A) of the
Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7)
and (9), without reliance on the provisions of Treasury Regulation Section
1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other
provision that would allow a Mortgage Loan to be treated as a "qualified
mortgage" notwithstanding its failure to meet the requirements of Section
860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1),
(2), (4), (5), (6), (7) and (9), any such cure or repurchase must occur
within 90 days from the date such breach was discovered; provided, however,
that if such defect relates solely to the inability of the Seller to deliver
the original Security Instrument or intervening assignments thereof, or a
certified copy because the originals of such documents, or a certified copy
have not been returned by the applicable jurisdiction, the Seller shall not
be required to purchase such Mortgage Loan if the Seller delivers such
original documents or certified copy promptly upon receipt, but in no event
later than 360 days after the Closing Date or any Subsequent Transfer Date.
The foregoing repurchase obligation shall not apply in the event that the
Seller cannot deliver such original or copy of any document submitted for
recording to the appropriate recording office in the applicable jurisdiction
because such document has not been returned by such office; provided that the
Seller shall instead deliver a recording receipt of such recording office or,
if such receipt is not available, a certificate confirming that such
documents have been accepted for recording, and delivery to the Trustee or
the Custodian, as its agent, shall be effected by the Seller within thirty
days of its receipt of the original recorded document.
(b) No later than 180 days after the Closing Date (or within 180 days of a
Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), the
Trustee or the Custodian, as its agent, will review, for the benefit of the
Certificateholders, the Mortgage Files delivered to it and will execute and
deliver or cause to be executed and delivered to the Depositor and the
Trustee a Final Certification. In conducting such review, the Trustee or the
Custodian, as its agent, will ascertain whether an original of each document
required to be recorded has been returned from the recording office with
evidence of recording thereon or a certified copy has been obtained from the
recording office. If the Trustee or the Custodian, as its agent, finds a
Material Defect, the Trustee or the Custodian, as its agent, shall promptly
notify the Seller (provided, however, that with respect to those documents
described in Sections 2.01(b)(iv), (v) and (vii), the Trustee's and
Custodian's obligations shall extend only to the documents actually delivered
to the Trustee or the Custodian pursuant to such Sections). In accordance
with the Mortgage Loan Purchase Agreement or any Subsequent Mortgage Loan
Purchase Agreement, as the case may be, the Seller shall correct or cure any
such defect within 90 days from the date of notice from the Trustee or the
Custodian, as its agent, of the Material Defect and if the Seller is unable
to cure such defect within such period, and if such defect materially and
adversely affects the interests of the Certificateholders in the related
Mortgage Loan, the Trustee shall enforce the Seller's obligation under the
Mortgage Loan Purchase Agreement or a Subsequent Mortgage Loan Purchase
Agreement, as the case may be, to provide a Substitute Mortgage Loan (if
within two years of the Closing Date) or purchase such Mortgage Loan at the
Repurchase Price; provided, however, that if such defect would cause the
Mortgage Loan to be other than a "qualified mortgage" as defined in
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the
provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury
Regulation Section 1.860G-2(f)(2) or any other provision that would allow a
Mortgage Loan to be treated as a "qualified mortgage" notwithstanding its
failure to meet the requirements of Section 860G(a)(3)(A) of the Code and
Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9),
any such cure, repurchase or substitution must occur within 90 days from the
date such breach was discovered; provided, further, that if such defect
relates solely to the inability of the Seller to deliver the original
Security Instrument or intervening assignments thereof, or a certified copy,
because the originals of such documents or a certified copy, have not been
returned by the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan, if the Seller delivers such original documents
or certified copy promptly upon receipt, but in no event later than 360 days
after the Closing Date or a Subsequent Transfer Date, as applicable. The
foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver such original or copy of any document submitted for recording
to the appropriate recording office in the applicable jurisdiction because
such document has not been returned by such office; provided that the Seller
shall instead deliver a recording receipt of such recording office or, if
such receipt is not available, a certificate confirming that such documents
have been accepted for recording, and delivery to the Trustee or the
Custodian, as its agent, shall be effected by the Seller within thirty days
of its receipt of the original recorded document.
(c) In the event that a Mortgage Loan is purchased by the Seller in
accordance with Sections 2.02(a) or (b) above, the Seller shall remit to the
Master Servicer the Repurchase Price for deposit in the Master Servicer
Collection Account and the Seller shall provide to the Securities
Administrator and the Trustee written notification detailing the components
of the Repurchase Price. Upon deposit of the Repurchase Price in the Master
Servicer Collection Account, the Depositor shall notify the Trustee and the
Custodian, as agent of the Trustee (upon receipt of a Request for Release in
the form of Exhibit D attached hereto with respect to such Mortgage Loan),
shall release to the Seller the related Mortgage File and the Trustee shall
execute and deliver all instruments of transfer or assignment, without
recourse, representation or warranty, furnished to it by the Seller, as are
necessary to vest in the Seller title to and rights under the Mortgage Loan.
Such purchase shall be deemed to have occurred on the date on which the
Repurchase Price in available funds is received by the Securities
Administrator. The Master Servicer shall amend the Mortgage Loan Schedule,
which was previously delivered to it by the Depositor in a form agreed to
between the Depositor and the Master Servicer, to reflect such repurchase and
shall promptly notify the Trustee of such amendment and the Trustee shall
promptly notify the Rating Agencies of such amendment. The obligation of the
Seller to repurchase any Mortgage Loan as to which such a defect in a
constituent document exists shall be the sole remedy respecting such defect
available to the Certificateholders or to the Trustee on their behalf.
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase Agreement
and Subsequent Mortgage Loan Purchase Agreements. (a) The Depositor hereby
assigns to the Trustee, on behalf of the Certificateholders, all of its
right, title and interest in the Mortgage Loan Purchase Agreement and each
Subsequent Mortgage Loan Purchase Agreement, including but not limited to the
Depositor's rights and obligations pursuant to the Servicing Agreements
(noting that the Seller has retained the right in the event of breach of the
representations, warranties and covenants, if any, with respect to the
related Mortgage Loans of the related Servicer under the related Servicing
Agreement to enforce the provisions thereof and to seek all or any available
remedies). The obligations of the Seller to substitute or repurchase, as
applicable, a Mortgage Loan shall be the Trustee's and the
Certificateholders' sole remedy for any breach thereof. At the request of
the Trustee, the Depositor shall take such actions as may be necessary to
enforce the above right, title and interest on behalf of the Trustee and the
Certificateholders or shall execute such further documents as the Trustee may
reasonably require in order to enable the Trustee to carry out such
enforcement.
(b) If the Depositor, the Master Servicer, or the Trustee discovers a breach
of any of the representations and warranties set forth in the Mortgage Loan
Purchase Agreement or a Subsequent Mortgage Loan Purchase Agreement, as the
case may be, which breach materially and adversely affects the value of the
interests of Certificateholders or the Trustee in the related Mortgage Loan,
the party discovering the breach shall give prompt written notice of the
breach to the other parties. The Seller, within 90 days of its discovery or
receipt of notice that such breach has occurred (whichever occurs earlier),
shall cure the breach in all material respects or, subject to the Mortgage
Loan Purchase Agreement, each Subsequent Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applicable, shall purchase the Mortgage
Loan or any property acquired with respect thereto from the Trustee;
provided, however, that if there is a breach of any representation set forth
in the Mortgage Loan Purchase Agreement, a Subsequent Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, and the Mortgage
Loan or the related property acquired with respect thereto has been sold,
then the Seller shall pay, in lieu of the Repurchase Price, any excess of the
Repurchase Price over the Net Liquidation Proceeds received upon such sale.
(If the Net Liquidation Proceeds exceed the Repurchase Price, any excess
shall be paid to the Seller to the extent not required by law to be paid to
the borrower.) Any such purchase by the Seller shall be made by providing an
amount equal to the Repurchase Price to the Master Servicer for deposit in
the Master Servicer Collection Account and written notification detailing the
components of such Repurchase Price. The Depositor shall notify the Trustee
and submit to the Trustee or the Custodian, as its agent, a Request for
Release, and the Trustee shall release, or the Trustee shall cause the
Custodian to release, to the Seller the related Mortgage File and the Trustee
shall execute and deliver all instruments of transfer or assignment furnished
to it by the Seller, without recourse, representation or warranty as are
necessary to vest in the Seller title to and rights under the Mortgage Loan
or any property acquired with respect thereto. Such purchase shall be deemed
to have occurred on the date on which the Repurchase Price in available funds
is received by the Securities Administrator. The Securities Administrator
shall amend the Mortgage Loan Schedule to reflect such repurchase and shall
promptly notify the Trustee and the Rating Agencies of such amendment.
Enforcement of the obligation of the Seller to purchase (or substitute a
Substitute Mortgage Loan for) any Mortgage Loan or any property acquired with
respect thereto (or pay the Repurchase Price as set forth in the above
proviso) as to which a breach has occurred and is continuing shall constitute
the sole remedy respecting such breach available to the Certificateholders or
the Trustee on their behalf.
Section 2.04 Substitution of Mortgage Loans. Notwithstanding anything to the
contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to
the Mortgage Loan Purchase Agreement, a Subsequent Mortgage Loan Purchase
Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no
later than the date by which such purchase by the Seller would otherwise be
required, tender to the Trustee a Substitute Mortgage Loan accompanied by a
certificate of an authorized officer of the Seller that such Substitute
Mortgage Loan conforms to the requirements set forth in the definition of
"Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement, a
Subsequent Mortgage Loan Purchase Agreement or this Agreement, as applicable;
provided, however, that substitution pursuant to the Mortgage Loan Purchase
Agreement, a Subsequent Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, in lieu of purchase shall not be permitted
after the termination of the two-year period beginning on the Startup Day;
provided, further, that if the breach would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3)(A) of the
Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7)
and (9), without reliance on the provisions of Treasury Regulation Section
1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other
provision that would allow a Mortgage Loan to be treated as a "qualified
mortgage" notwithstanding its failure to meet the requirements of Section
860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1),
(2), (4), (5), (6), (7) and (9), any such cure or substitution must occur
within 90 days from the date the breach was discovered. The Trustee or the
Custodian, as its agent, shall examine the Mortgage File for any Substitute
Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or
the Custodian, as its agent, shall notify the Seller, in writing, within five
Business Days after receipt, whether or not the documents relating to the
Substitute Mortgage Loan satisfy the requirements of the fourth sentence of
Section 2.02(a). Within two Business Days after such notification, the
Seller shall provide to the Securities Administrator for deposit in the
Distribution Account the amount, if any, by which the Outstanding Principal
Balance as of the next preceding Due Date of the Mortgage Loan for which
substitution is being made, after giving effect to the Scheduled Principal
due on such date, exceeds the Outstanding Principal Balance as of such date
of the Substitute Mortgage Loan, after giving effect to Scheduled Principal
due on such date, which amount shall be treated for the purposes of this
Agreement as if it were the payment by the Seller of the Repurchase Price for
the purchase of a Mortgage Loan by the Seller. After such notification to
the Seller and, if any such excess exists, upon receipt of such deposit, the
Trustee shall accept such Substitute Mortgage Loan which shall thereafter be
deemed to be a Mortgage Loan hereunder. In the event of such a substitution,
accrued interest on the Substitute Mortgage Loan for the month in which the
substitution occurs and any Principal Prepayments made thereon during such
month shall be the property of the Trust Fund and accrued interest for such
month on the Mortgage Loan for which the substitution is made and any
Principal Prepayments made thereon during such month shall be the property of
the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the
Due Date in the month of substitution shall be the property of the Seller and
the Scheduled Principal on the Mortgage Loan for which the substitution is
made due on such Due Date shall be the property of the Trust Fund. Upon
acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or
the Custodian as agent of the Trustee, as applicable, of a Request for
Release for such Mortgage Loan), the Trustee or the Custodian, as agent for
the Trustee, shall release to the Seller the related Mortgage File related to
any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement,
a Subsequent Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, and shall execute and deliver all instruments of
transfer or assignment, without recourse, representation or warranty in form
as provided to it as are necessary to vest in the Seller title to and rights
under any Mortgage Loan released pursuant to the Mortgage Loan Purchase
Agreement, a Subsequent Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable. The Seller shall deliver the documents
related to the Substitute Mortgage Loan in accordance with the provisions of
the Mortgage Loan Purchase Agreement, a Subsequent Mortgage Loan Purchase
Agreement or Sections 2.01(b) and 2.02(b) of this Agreement, as applicable,
with the date of acceptance of the Substitute Mortgage Loan deemed to be the
Closing Date for purposes of the time periods set forth in those Sections.
The representations and warranties set forth in the Mortgage Loan Purchase
Agreement and the Subsequent Mortgage Loan Purchase Agreements shall be
deemed to have been made by the Seller with respect to each Substitute
Mortgage Loan as of the date of acceptance of such Mortgage Loan by the
Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to
reflect such substitution and shall provide a copy of such amended Mortgage
Loan Schedule to the Trustee and the Trustee shall deliver such amended
Mortgage Loan Schedule to the Rating Agencies.
Section 2.05 Issuance of Certificates.
(a) The Trustee acknowledges the assignment to it of the Mortgage Loans and
the other assets comprising the Trust Fund and, concurrently therewith, has
signed, and countersigned and delivered to the Depositor, in exchange
therefor, Certificates in such authorized denominations representing such
Fractional Undivided Interests as the Depositor has requested. The Trustee
agrees that it will hold the Mortgage Loans and such other assets as may from
time to time be delivered to it (or the Custodian, as its agent) segregated
on the books of the Trustee in trust for the benefit of the
Certificateholders.
(b) The Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey in trust to the
Trustee without recourse all the right, title and interest of the Depositor
in and to (i) the REMIC I Regular Interests, and the other assets of REMIC
III, for the benefit of the holders of the REMIC III Interests, (ii) the
REMIC II Regular Interests and the REMIC III Regular Interests, and the other
assets of REMIC IV, for the benefit of the holders of the REMIC IV Interests,
and (iii) the REMIC IV Regular Interests B-IO-I and B-IO-P, and the other
assets of REMIC V for the benefit of the holders of the REMIC V Interests.
The Trustee acknowledges receipt of the REMIC I Regular Interests, REMIC II
Regular Interests, REMIC III Regular Interests and REMIC IV Regular Interests
B-IO-I and B-IO-P (each of which are uncertificated) and the other assets of
REMIC III, REMIC IV and REMIC V, and declares that it holds and will hold the
same in trust for the exclusive use and benefit of the holders of the REMIC
III Interests, REMIC IV Interests and REMIC V Interests, as applicable.
Section 2.06 Representations and Warranties Concerning the Depositor. The
Depositor hereby represents and warrants to the Trustee, the Master Servicer
and the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and (b) is qualified
and in good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where the failure
so to qualify would not reasonably be expected to have a material adverse
effect on the Depositor's business as presently conducted or on the
Depositor's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this Agreement have been
duly authorized by all necessary corporate action on the part of the
Depositor; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute
a default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties or the articles of incorporation or by-laws of the Depositor,
except those conflicts, breaches or defaults which would not reasonably be
expected to have a material adverse effect on the Depositor's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(iv) the execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given
or made;
(v) this Agreement has been duly executed and delivered by the Depositor and,
assuming due authorization, execution and delivery by the other parties
hereto, constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the knowledge
of the Depositor, threatened against the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (i) with respect to
any of the transactions contemplated by this Agreement or (ii) with respect
to any other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will if determined adversely to the Depositor
materially and adversely affect the Depositor's ability to enter into this
Agreement or perform its obligations under this Agreement; and the Depositor
is not in default with respect to any order of any court, administrative
agency, arbitrator or governmental body so as to materially and adversely
affect the transactions contemplated by this Agreement; and
(vii) immediately prior to the transfer and assignment to the Trustee, each
Mortgage Note and each Mortgage were not subject to an assignment or pledge,
and the Depositor had good and marketable title to and was the sole owner
thereof and had full right to transfer and sell such Mortgage Loan to the
Trustee free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest.
Section 2.07. Conveyance of the Subsequent Mortgage Loans.
(a) Subject to the conditions set forth in paragraph (b) below, in
consideration of the Paying Agent's delivery on the Subsequent Transfer Dates
to or upon the written order of the Depositor of all or a portion of the
balance of funds in the Pre-Funding Account, the Depositor shall, on such
Subsequent Transfer Date, sell, transfer, assign, set over and convey without
recourse to the Trust Fund (subject to the other terms and provisions of this
Agreement) all its right, title and interest in and to (i) the Subsequent
Mortgage Loans identified on the Mortgage Loan Schedule attached to the
related Subsequent Transfer Instrument delivered by the Depositor on such
Subsequent Transfer Date, (ii) all interest accruing thereon on and after the
Subsequent Cut-off Date and all collections in respect of interest and
principal due after the Subsequent Cut-off Date and (iii) all items with
respect to such Subsequent Mortgage Loans to be delivered pursuant to Section
2.01 and the other items in the related Mortgage Files; provided, however,
that the Depositor reserves and retains all right, title and interest in and
to principal received and interest accruing on such Subsequent Mortgage Loans
prior to the related Subsequent Cut-off Date. The transfer to the Trust for
deposit in the applicable Loan Group or Sub-Loan Group by the Depositor of
the Subsequent Mortgage Loans identified on the related Mortgage Loan
Schedule shall be absolute and is intended by the Depositor, the Seller, the
Master Servicer, the Securities Administrator, the Trustee and the
Certificateholders to constitute and to be treated as a sale of the
Subsequent Mortgage Loans by the Depositor to the Trust. The related Mortgage
File for each Subsequent Mortgage Loan shall be delivered to the Trustee or
the Custodian, as its agent, at least three Business Days prior to the
related Subsequent Transfer Date.
The purchase price paid by the Trust from amounts released by the
Paying Agent from the Pre-Funding Account shall be 100% of the aggregate
Stated Principal Balance of the Subsequent Mortgage Loans so transferred (as
identified on the Mortgage Loan Schedule provided by the Depositor). This
Agreement shall constitute a fixed price purchase contract in accordance with
Section 860G(a)(3)(A)(ii) of the Code.
(b) The Depositor shall transfer to the Trustee on behalf of the Trust for
deposit in the applicable Loan Group, the Subsequent Mortgage Loans, and the
other property and rights related thereto as described in paragraph (a)
above, and the Paying Agent shall release funds from the Pre-Funding Account
in an amount equal to the Subsequent Mortgage Loans purchased on the related
Subsequent Transfer Date, only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) the Depositor shall have delivered to the Trustee a duly executed
Subsequent Transfer Instrument, which shall include a Mortgage Loan
Schedule listing the Subsequent Mortgage Loans, and the Mortgage Loan
Seller shall cause to be delivered a computer file containing such
Mortgage Loan Schedule to the Trustee and the Master Servicer at least
three Business Days prior to the related Subsequent Transfer Date;
(ii) the Depositor shall have furnished to the Master Servicer,
no later than three Business Days prior to the related Subsequent
Transfer Date, (x) if the servicer or servicers of such Subsequent
Mortgage Loans are existing Servicers, then a written acknowledgement
of each such Servicer that it is servicing such Subsequent Mortgage
Loans pursuant to the related Servicing Agreement, or (y) if the
servicer or servicers are not existing Servicers, then a Servicing
Agreement and Assignment, Assumption and Recognition Agreement with
respect to such servicer or servicers in form and substance reasonably
satisfactory to the Master Servicer;
(iii) as of each Subsequent Transfer Date, as evidenced by
delivery of the Subsequent Transfer Instrument, substantially in the
form of Exhibit L, the Depositor shall not be insolvent nor shall it
have been rendered insolvent by such transfer nor shall it be aware of
any pending insolvency with respect to it:
(iv) such sale and transfer shall not result in a material
adverse tax consequence to the Trust or the Certificateholders;
(v) the Pre-Funding Period shall not have terminated;
(vi) the Depositor shall not have selected the Subsequent
Mortgage Loans in a manner that it believed to be adverse to the
interests of the Ccrtificateholders; and
(vii) the Depositor shall have delivered to the Trustee a
Subsequent Transfer Instrument confirming the satisfaction of the
conditions precedent specified in this Section 2.07 and, pursuant to
the Subsequent Transfer Instrument, assigned to the Trustee without
recourse for the benefit of the Certificateholders all the right, title
and interest of the Depositor, in, to and under the Subsequent Mortgage
Loan Purchase Agreement, to the extent of the Subsequent Mortgage Loans.
(c) Any conveyance of Subsequent Mortgage Loans on a Subsequent Transfer Date
is subject to certain conditions including, but not limited to, the following:
(i) Each such Subsequent Mortgage Loan must satisfy the representations and
warranties specified in the related Subsequent Transfer Instrument and
this Agreement;
(ii) The Depositor will not select such Subsequent Mortgage Loans in a manner
that it believes to be adverse to the interests of the
Certificateholders;
(iii) As of the related Subsequent Cut-off Date, each such Subsequent
Mortgage Loan will satisfy the following criteria:
(1) The mortgaged property is proven to be free of material damage;
(2) A broker purchase opinion of value, or BPO, has been obtained and the BPO
is not less than 90% of the original valuation of the Xxxxxxx
Loan as of origination;
(3) The BPO does not result in the related mortgage loan's loan-to-value
ratio on the closing date being in excess of 100%;
(4) Such Subsequent Mortgage Loan may not be 30 or more days delinquent as of
the last day of the month preceding the related Subsequent
Cut-off Date;
(5) The original term to stated maturity of such Subsequent Mortgage Loan
will not be less than 180 months and will not exceed 360 months;
(6) Each Subsequent Mortgage Loan must be a One-Month LIBOR, Six Month
LIBOR, One Year LIBOR or One Year Treasury adjustable rate
Mortgage Loan with a first lien on the related Mortgaged Property;
(7) No Subsequent Mortgage Loan will have a first payment date occurring
after October 1, 2005;
(8) The latest maturity date of any Subsequent Mortgage Loan will be no later
than September 1, 2035;
(9) Such Subsequent Mortgage Loan will have a credit score of not less than
620;
(10) Such Subsequent Mortgage Loan will have a Gross Margin as of the related
Subsequent Cut-off Date ranging from approximately 2.25% per
annum to approximately 2.75% per annum;
(11) Such Subsequent Mortgage Loan will have a maximum mortgage rate as of
the related Subsequent Cut-Off Date greater than 10.500%; and
(12) Such Subsequent Mortgage Loan shall have been underwritten in accordance
with the underwriting guidelines of EMC;
(d) As of the related Subsequent Cut-off Date, the Subsequent Mortgage Loans
in the aggregate will satisfy the following criteria:
(i) Have a weighted average Gross Margin ranging from 2.25% to 2.75% per
annum;
(ii) Have a weighted average credit score greater than 700;
(iii) Have no less than 30.20% of the Mortgaged Properties be owner occupied;
(iv) Have no less than 73% of the Mortgaged Properties be single family
detached or planned unit developments;
(v) Have no more than 12% of the Subsequent Mortgage Loans be cash out
refinance;
(vi) Have all of such Subsequent Mortgage Loans with a Loan-to-Value Ratio
greater than 80% be covered by a Primary Insurance Policy;
(vii) Have a weighted average maximum mortgage rate greater than or equal to
11%; and
(viii) Be acceptable to the Rating Agencies as evidenced by written
confirmation that the inclusion of the Mortgage Loans in the Trust will
not cause a Rating Agency to withdraw or reduce the rating of any Class
of Certificates.
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 Master Servicer. The Master Servicer shall supervise, monitor
and oversee the obligation of the Servicers to service and administer their
respective Mortgage Loans in accordance with the terms of the applicable
Servicing Agreements and shall have full power and authority to do any and
all things which it may deem necessary or desirable in connection with such
master servicing and administration. In performing its obligations
hereunder, the Master Servicer shall act in a manner consistent with Accepted
Master Servicing Practices. Furthermore, the Master Servicer shall oversee
and consult with each Servicer as necessary from time-to-time to carry out
the Master Servicer's obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master
Servicer by each Servicer and shall cause each Servicer to perform and
observe the covenants, obligations and conditions to be performed or observed
by such Servicer under its applicable Servicing Agreement. The Master
Servicer shall independently and separately monitor each Servicer's servicing
activities with respect to each related Mortgage Loan, reconcile the results
of such monitoring with such information provided in the previous sentence on
a monthly basis and coordinate corrective adjustments to the Servicers' and
Master Servicer's records, and based on such reconciled and corrected
information, the Master Servicer shall provide such information to the
Securities Administrator as shall be necessary in order for it to prepare the
statements specified in Section 6.04, and prepare any other information and
statements required to be forwarded by the Master Servicer hereunder. The
Master Servicer shall reconcile the results of its Mortgage Loan monitoring
with the actual remittances of the Servicers as reported to the Master
Servicer.
The Trustee shall furnish the Servicers and the Master Servicer with
any powers of attorney, in substantially the form attached hereto as Exhibit
K, and other documents in form as provided to it necessary or appropriate to
enable the Servicers and the Master Servicer to service and administer the
related Mortgage Loans and REO Property.
The Trustee shall provide access to the records and documentation in
possession of the Trustee regarding the related Mortgage Loans and REO
Property and the servicing thereof to the Certificateholders, the FDIC, and
the supervisory agents and examiners of the FDIC, such access being afforded
only upon reasonable prior written request and during normal business hours
at the office of the Trustee; provided, however, that, unless otherwise
required by law, the Trustee shall not be required to provide access to such
records and documentation if the provision thereof would violate the legal
right to privacy of any Mortgagor. The Trustee shall allow representatives
of the above entities to photocopy any of the records and documentation and
shall provide equipment for that purpose at a charge that covers the
Trustee's actual costs.
The Trustee shall execute and deliver to the Servicer and the Master
Servicer any court pleadings, requests for trustee's sale or other documents
necessary or desirable to (i) the foreclosure or trustee's sale with respect
to a Mortgaged Property; (ii) any legal action brought to obtain judgment
against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument
or otherwise available at law or equity.
Section 3.02 REMIC-Related Covenants. For as long as each 2005-9 REMIC shall
exist, the Trustee and the Securities Administrator shall act in accordance
herewith to assure continuing treatment of such 2005-9 REMIC as a REMIC, and
the Trustee and the Securities Administrator shall comply with any directions
of the Depositor, the related Servicer or the Master Servicer to assure such
continuing treatment. In particular, the Trustee shall not (a) sell or
permit the sale of all or any portion of the Mortgage Loans or of any
investment of deposits in an Account unless such sale is as a result of a
repurchase of the Mortgage Loans pursuant to this Agreement or the Trustee
has received a REMIC Opinion addressed to the Trustee prepared at the expense
of the Trust Fund; and (b) other than with respect to a substitution pursuant
to the Mortgage Loan Purchase Agreement, any Subsequent Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as applicable, accept
any contribution to any 2005-9 REMIC after the Startup Day without receipt of
a REMIC Opinion addressed to the Trustee.
Section 3.03 Monitoring of Servicers. (a) The Master Servicer shall be
responsible for reporting to the Trustee and the Depositor the compliance by
each Servicer with its duties under the related Servicing Agreement. In the
review of each Servicer's activities, the Master Servicer may rely upon an
officer's certificate of the Servicer (or similar document signed by an
officer of the Servicer) with regard to such Servicer's compliance with the
terms of its Servicing Agreement. In the event that the Master Servicer, in
its judgment, determines that a Servicer should be terminated in accordance
with its Servicing Agreement, or that a notice should be sent pursuant to
such Servicing Agreement with respect to the occurrence of an event that,
unless cured, would constitute grounds for such termination, the Master
Servicer shall notify the Depositor and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of
such Servicer thereunder and act as servicer of the related Mortgage Loans or
cause the Trustee to enter in to a new Servicing Agreement with a successor
Servicer selected by the Master Servicer; provided, however, it is understood
and acknowledged by the parties hereto that there will be a period of
transition (not to exceed 90 days) before the actual servicing functions can
be fully transferred to such successor Servicer. Such enforcement,
including, without limitation, the legal prosecution of claims, termination
of 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.
(c) To the extent that the costs and expenses of the Master Servicer related
to any termination of a Servicer, appointment of a successor Servicer or the
transfer and assumption of servicing by the Master Servicer with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs
and expenses and all due diligence costs and expenses associated with an
evaluation of the potential termination of the Servicer as a result of an
event of default by such Servicer and (ii) all costs and expenses associated
with the complete transfer of servicing, including, but not limited to, all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor
servicer to correct any errors or insufficiencies in the servicing data or
otherwise to enable the successor service to service the Mortgage Loans in
accordance with the related Servicing Agreement) are not fully and timely
reimbursed by the terminated Servicer, the Master Servicer shall be entitled
to reimbursement of such costs and expenses from the Master Servicer
Collection Account.
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related
Servicing Agreement, including the obligation of each Servicer to furnish
information regarding the borrower credit files related to each Mortgage Loan
to credit reporting agencies in compliance with the provisions of the Fair
Credit Reporting Act and the applicable implementing regulations, on a
monthly basis.
(e) If the Master Servicer acts as Servicer, it will not assume liability for
the representations and warranties of the Servicer, if any, that it replaces.
Section 3.04 Fidelity Bond. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions
insurance policy, affording coverage with respect to all directors, officers,
employees and other Persons acting on such Master Servicer's behalf, and
covering errors and omissions in the performance of the Master Servicer's
obligations hereunder. The errors and omissions insurance policy and the
fidelity bond shall be in such form and amount generally acceptable for
entities serving as master servicers or trustees.
Section 3.05 Power to Act; Procedures. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority, subject
to the REMIC Provisions and the provisions of Article X hereof, to do any and
all things that it may deem necessary or desirable in connection with the
master servicing and administration of the Mortgage Loans, including but not
limited to the power and authority (i) to execute and deliver, on behalf of
the Certificateholders and the Trustee, customary consents or waivers and
other instruments and documents, (ii) to consent to transfers of any
Mortgaged Property and assumptions of the Mortgage Notes and related
Mortgages, (iii) to collect any Insurance Proceeds and Liquidation Proceeds,
and (iv) to effectuate foreclosure or other conversion of the ownership of
the Mortgaged Property securing any Mortgage Loan, in each case, in
accordance with the provisions of this Agreement and the Servicing Agreement,
as applicable; provided, however, that the Master Servicer shall not (and,
consistent with its responsibilities under Section 3.03, shall not permit any
Servicer to) knowingly or intentionally take any action, or fail to take (or
fail to cause to be taken) any action reasonably within its control and the
scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, would cause any 2005-9
REMIC to fail to qualify as a REMIC or result in the imposition of a tax upon
the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) unless the
Master Servicer has received an Opinion of Counsel (but not at the expense of
the Master Servicer) to the effect that the contemplated action would not
cause any 2005-9 REMIC to fail to qualify as a REMIC or result in the
imposition of a tax upon any 2005-9 REMIC. The Trustee shall furnish the
Master Servicer, upon written request from a Servicing Officer, with any
powers of attorney empowering the Master Servicer or any Servicer to execute
and deliver instruments of satisfaction or cancellation, or of partial or
full release or discharge, and to foreclose upon or otherwise liquidate
Mortgaged Property, and to appeal, prosecute or defend in any court action
relating to the Mortgage Loans or the Mortgaged Property, in accordance with
the applicable Servicing Agreement and this Agreement, and the Trustee shall
execute and deliver such other documents, as the Master Servicer may request,
to enable the Master Servicer to master service and administer the Mortgage
Loans and carry out its duties hereunder, in each case in accordance with
Accepted Master Servicing Practices (and the Trustee shall have no liability
for misuse of any such powers of attorney by the Master Servicer or any
Servicer). If the Master Servicer or the Trustee has been advised that it is
likely that the laws of the state in which action is to be taken prohibit
such action if taken in the name of the Trustee or that the Trustee would be
adversely affected under the "doing business" or tax laws of such state if
such action is taken in its name, the Master Servicer shall join with the
Trustee in the appointment of a co-trustee pursuant to Section 9.11 hereof.
In the performance of its duties hereunder, the Master Servicer shall be an
independent contractor and shall not, except in those instances where it is
taking action in the name of the Trustee, be deemed to be the agent of the
Trustee.
Section 3.06 Due-on-Sale Clauses; Assumption Agreements. To the extent
provided in the applicable Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale
clause or such clause is otherwise not enforced in accordance with the
applicable Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section 3.07 Release of Mortgage Files. (a) Upon becoming aware of the
payment in full of any Mortgage Loan, or the receipt by any Servicer of a
notification that payment in full has been escrowed in a manner customary for
such purposes for payment to Certificateholders on the next Distribution
Date, the Servicer will, if required under the applicable Servicing Agreement
(or if the Servicer does not, the Master Servicer may), promptly furnish to
the Custodian, on behalf of the Trustee, two copies of a certification
substantially in the form of Exhibit D hereto signed by a Servicing Officer
or in a mutually agreeable electronic format which will, in lieu of a
signature on its face, originate from a Servicing Officer (which
certification shall include a statement to the effect that all amounts
received in connection with such payment that are required to be deposited in
the Protected Account maintained by the applicable Servicer pursuant to
Section 4.01, or by the applicable Servicer pursuant to its Servicing
Agreement, have been or will be so deposited) and shall request that the
Custodian, on behalf of the Trustee, deliver to the applicable Servicer the
related Mortgage File. Upon receipt of such certification and request, the
Custodian, on behalf of the Trustee, shall promptly release the related
Mortgage File to the applicable Servicer and the Trustee and Custodian shall
have no further responsibility with regard to such Mortgage File. Upon any
such payment in full, each Servicer is authorized, to give, as agent for the
Trustee, as the mortgagee under the Mortgage that secured the Mortgage Loan,
an instrument of satisfaction (or assignment of mortgage without recourse)
regarding the Mortgaged Property subject to the Mortgage, which instrument of
satisfaction or assignment, as the case may be, shall be delivered to the
Person or Persons entitled thereto against receipt therefor of such payment,
it being understood and agreed that no expenses incurred in connection with
such instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Protected Account.
(b) From time to time and as appropriate for the servicing or foreclosure of
any Mortgage Loan and in accordance with the applicable Servicing Agreement,
the Trustee shall execute such documents as shall be prepared and furnished
to the Trustee by a Servicer or the Master Servicer (in form reasonably
acceptable to the Trustee) and as are necessary to the prosecution of any
such proceedings. The Custodian, on behalf of the Trustee, shall, upon the
request of a Servicer or the Master Servicer, and delivery to the Custodian,
on behalf of the Trustee, of two copies of a request for release signed by a
Servicing Officer substantially in the form of Exhibit D (or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer), release the related Mortgage File held
in its possession or control to the Servicer or the Master Servicer, as
applicable. Such trust receipt shall obligate the Servicer or the Master
Servicer to return the Mortgage File to the Custodian on behalf of the
Trustee, when the need therefor by the Servicer or the Master Servicer no
longer exists unless the Mortgage Loan shall be liquidated, in which case,
upon receipt of a certificate of a Servicing Officer similar to that
hereinabove specified, the Mortgage File shall be released by the Custodian,
on behalf of the Trustee, to the Servicer or the Master Servicer.
Section 3.08 Documents, Records and Funds in Possession of Master Servicer To
Be Held for Trustee.
(a) The Master Servicer shall transmit and each Servicer (to the extent
required by the related Servicing Agreement) shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Master Servicer or such Servicer from time to time as are required by the
terms hereof, or in the case of the Servicers, the applicable Servicing
Agreement, to be delivered to the Trustee or Custodian. Any funds received
by the Master Servicer or by a Servicer in respect of any Mortgage Loan or
which otherwise are collected by the Master Servicer or by a Servicer as
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan
shall be held for the benefit of the Trustee and the Certificateholders
subject to the Master Servicer's right to retain or withdraw from the Master
Servicer Collection Account the Master Servicing Compensation and other
amounts provided in this Agreement, and to the right of each Servicer to
retain its Servicing Fee and other amounts as provided in the applicable
Servicing Agreement. The Master Servicer shall, and (to the extent provided
in the applicable Servicing Agreement) shall cause each Servicer to, provide
access to information and documentation regarding the Mortgage Loans to the
Trustee, its agents and accountants at any time upon reasonable request and
during normal business hours, and to Certificateholders that are savings and
loan associations, banks or insurance companies, the Office of Thrift
Supervision, the FDIC and the supervisory agents and examiners of such Office
and Corporation or examiners of any other federal or state banking or
insurance regulatory authority if so required by applicable regulations of
the Office of Thrift Supervision or other regulatory authority, such access
to be afforded without charge but only upon reasonable request in writing and
during normal business hours at the offices of the Master Servicer designated
by it. In fulfilling such a request the Master Servicer shall not be
responsible for determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the control
of, the Master Servicer, in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, shall be held by the Master Servicer for and on behalf of
the Trustee and the Certificateholders and shall be and remain the sole and
exclusive property of the Trustee; provided, however, that the Master
Servicer and each Servicer shall be entitled to setoff against, and deduct
from, any such funds any amounts that are properly due and payable to the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement.
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any obligation
of the Servicers under the related Servicing Agreements to maintain or cause
to be maintained standard fire and casualty insurance and, where applicable,
flood insurance, all in accordance with the provisions of the related
Servicing Agreements. It is understood and agreed that such insurance shall
be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by the Servicers
or the Master Servicer, under any insurance policies (other than amounts to
be applied to the restoration or repair of the property subject to the
related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Master Servicer
Collection Account, subject to withdrawal pursuant to Section 4.02 and 4.03.
Any cost incurred by the Master Servicer or any Servicer in maintaining any
such insurance if the Mortgagor defaults in its obligation to do so shall be
added to the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so permit; provided, however, that the addition of any such
cost shall not be taken into account for purposes of calculating the
distributions to be made to Certificateholders and shall be recoverable by
the Master Servicer or such Servicer pursuant to Section 4.02 and 4.03.
Section 3.10 Presentment of Claims and Collection of Proceeds. The Master
Servicer shall (to the extent provided in the applicable Servicing Agreement)
cause the related Servicer to, prepare and present on behalf of the Trustee
and the Certificateholders all claims under the Insurance Policies and take
such actions (including the negotiation, settlement, compromise or
enforcement of the insured's claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or
disbursed to a Servicer and remitted to the Master Servicer) in respect of
such policies, bonds or contracts shall be promptly deposited in the Master
Servicer Collection Account upon receipt, except that any amounts realized
that are to be applied to the repair or restoration of the related Mortgaged
Property as a condition precedent to the presentation of claims on the
related Mortgage Loan to the insurer under any applicable Insurance Policy
need not be so deposited (or remitted).
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit any Servicer (to the extent
such action is prohibited under the applicable Servicing Agreement) to take,
any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the
Master Servicer or such Servicer, would have been covered thereunder. The
Master Servicer shall use its best reasonable efforts to cause each Servicer
(to the extent required under the related Servicing Agreement) to keep in
force and effect (to the extent that the Mortgage Loan requires the Mortgagor
to maintain such insurance), primary mortgage insurance applicable to each
Mortgage Loan in accordance with the provisions of this Agreement and the
related Servicing Agreement, as applicable. The Master Servicer shall not,
and shall not permit any Servicer (to the extent required under the related
Servicing Agreement) to, cancel or refuse to renew any such Primary Mortgage
Insurance Policy that is in effect at the date of the initial issuance of the
Mortgage Note and is required to be kept in force hereunder except in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer (to the
extent required under the related Servicing Agreement) to present, on behalf
of the Trustee and the Certificateholders, claims to the insurer under any
Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Section 4.01 and 4.02, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in
the Master Servicer Collection Account, subject to withdrawal pursuant to
Section 4.03.
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and
Documents.
The Trustee (or the Custodian, as directed by the Trustee), shall
retain possession and custody of the originals (to the extent available) of
any Primary Mortgage Insurance Policies, or certificate of insurance if
applicable, and any certificates of renewal as to the foregoing as may be
issued from time to time as contemplated by this Agreement. Until all
amounts distributable in respect of the Certificates have been distributed in
full and the Master Servicer otherwise has fulfilled its obligations under
this Agreement, the Trustee (or its Custodian, if any, as directed by the
Trustee) shall also retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions of this Agreement.
The Master Servicer shall promptly deliver or cause to be delivered to the
Trustee (or the Custodian, as directed by the Trustee), upon the execution or
receipt thereof the originals of any Primary Mortgage Insurance Policies, any
certificates of renewal, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Master Servicer from time to time.
Section 3.13 Realization Upon Defaulted Mortgage Loans. The Master Servicer
shall cause each Servicer (to the extent required under the related Servicing
Agreement) to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can
be made for collection of delinquent payments, all in accordance with the
applicable Servicing Agreement.
Section 3.14 Compensation for the Master Servicer.
The Master Servicer will be entitled to the income and gain realized
from any investment of funds in the Master Servicer Collection Account as set
forth in Section 4.02 for the performance of its activities hereunder.
Servicing compensation in the form of assumption fees, if any, late payment
charges, as collected, if any, or otherwise (but not including any Prepayment
Charge) shall be retained by the applicable Servicer and shall not be
deposited in the Protected Account. The Master Servicer will be entitled to
retain, as additional compensation, any interest remitted by a Servicer in
connection with a Principal Prepayment in full or otherwise in excess of
amounts required to be remitted to the Distribution Account (such amounts
together with the amounts specified in the first sentence of this Section
3.14, the "Master Servicing Compensation"). The Master Servicer shall be
required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as
provided in this Agreement.
Section 3.15 REO Property.
(a) In the event the Trust Fund acquires ownership of any REO Property in
respect of any related Mortgage Loan, the deed or certificate of sale shall
be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Servicing Agreement, cause the applicable Servicer to sell, any
REO Property as expeditiously as possible and in accordance with the
provisions of this Agreement and the related Servicing Agreement, as
applicable. Pursuant to its efforts to sell such REO Property, the Master
Servicer shall cause the applicable Servicer to protect and conserve, such
REO Property in the manner and to the extent required by the applicable
Servicing Agreement, in accordance with the REMIC Provisions and in a manner
that does not result in a tax on "net income from foreclosure property"
(unless such result would maximize the Trust Fund's after-tax return on such
property) or cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property
in the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Monthly Advances and other unreimbursed advances as well
as any unpaid Servicing Fees from Liquidation Proceeds received in connection
with the final disposition of such REO Property; provided, that any such
unreimbursed Monthly Advances as well as any unpaid Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of
any net rental income or other net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of
any payment to the Master Servicer and the applicable Servicer as provided
above shall be deposited in the Protected Account on or prior to the
Determination Date in the month following receipt thereof and be remitted by
wire transfer in immediately available funds to the Master Servicer for
deposit into the related Master Servicer Collection Account on the next
succeeding Servicer Remittance Date.
Section 3.16 Annual Officer's Certificate as to Compliance.
(a) The Master Servicer shall deliver to the Trustee and the Rating Agencies
on or before March 1 of each year, commencing with March 1, 2006, an
Officer's Certificate, certifying that with respect to the period ending
December 31 of the prior year: (i) such Servicing Officer has reviewed the
activities of such Master Servicer during the preceding calendar year or
portion thereof and its performance under this Agreement, (ii) to the best of
such Servicing Officer's knowledge, based on such review, such Master
Servicer has performed and fulfilled its duties, responsibilities and
obligations under this Agreement in all material respects throughout such
year, or, if there has been a default in the fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof, (iii) nothing has come
to the attention of such Servicing Officer to lead such Servicing Officer to
believe that any Servicer has failed to perform any of its duties,
responsibilities and obligations under its Servicing Agreement in all
material respects throughout such year, or, if there has been a material
default in the performance or fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof.
(b) Copies of such statements shall be provided to any Certificateholder upon
request, by the Master Servicer or by the Trustee at the Master Servicer's
expense if the Master Servicer failed to provide such copies (unless (i) the
Master Servicer shall have failed to provide the Trustee with such statement
or (ii) the Trustee shall be unaware of the Master Servicer's failure to
provide such statement).
Section 3.17 Annual Independent Accountant's Servicing Report. If the Master
Servicer has, during the course of any fiscal year, directly serviced any of
the Mortgage Loans, then the Master Servicer at its expense shall cause a
nationally recognized firm of independent certified public accountants to
furnish a statement to the Trustee, the Rating Agencies and the Depositor on
or before March 1 of each year, commencing with March 1, 2006 to the effect
that, with respect to the most recently ended calendar year, such firm has
examined certain records and documents relating to the Master Servicer's
performance of its servicing obligations under this Agreement and pooling and
servicing and trust agreements in material respects similar to this Agreement
and to each other and that, on the basis of such examination conducted
substantially in compliance with the audit program for mortgages serviced for
Xxxxxxx Mac or the Uniform Single Attestation Program for Mortgage Bankers,
such firm is of the opinion that the Master Servicer's activities have been
conducted in compliance with this Agreement, or that such examination has
disclosed no material items of noncompliance except for (i) such exceptions
as such firm believes to be immaterial, (ii) such other exceptions as are set
forth in such statement and (iii) such exceptions that the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
Serviced by Xxxxxxx Mac requires it to report. Copies of such statements
shall be provided to any Certificateholder upon request by the Master
Servicer, or by the Trustee at the expense of the Master Servicer if the
Master Servicer shall fail to provide such copies. If such report discloses
exceptions that are material, the Master Servicer shall advise the Trustee
whether such exceptions have been or are susceptible of cure, and will take
prompt action to do so.
Section 3.18 Reports Filed with Securities and Exchange Commission. Within 15
days after each Distribution Date, the Securities Administrator shall, in
accordance with industry standards, file with the Commission via the
Electronic Data Gathering and Retrieval System ("XXXXX"), a Form 8-K (or
other comparable form containing the same or comparable information or other
information mutually agreed upon) with a copy of the statement to the Trustee
who shall (to the extent received from the Securities Administrator) make
available (via the Trustee's internet website) a copy of the monthly
statement to the Certificateholders for such Distribution Date as an exhibit
thereto. Prior to January 30 in each year, the Securities Administrator
shall, in accordance with industry standards, file a Form 15 Suspension
Notice with respect to the Trust Fund, if applicable. Prior to (i) March 15,
2006 and (ii) unless and until a Form 15 Suspension Notice shall have been
filed, prior to March 15 of each year thereafter, the Master Servicer shall
provide the Securities Administrator with a Master Servicer Certification,
together with a copy of the annual independent accountant's servicing report
and annual statement of compliance of each Servicer, in each case, required
to be delivered pursuant to the related Servicing Agreement, and, if
applicable, the annual independent accountant's servicing report and annual
statement of compliance to be delivered by the Master Servicer pursuant to
Sections 3.16 and 3.17. Prior to (i) March 31, 2006, or such earlier filing
date as may be required by the Commission, and (ii) unless and until a Form
15 Suspension Notice shall have been filed, March 31 of each year thereafter,
or such earlier filing date as may be required by the Commission, the
Securities Administrator shall prepare and file a Form 10-K, in substance
conforming to industry standards, with respect to the Trust. Such Form 10-K
shall include the Master Servicer Certification and other documentation
provided by the Master Servicer pursuant to the second preceding sentence.
The Depositor hereby grants to the Securities 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 either the earlier of
(i) receipt by the Securities Administrator from the Depositor of written
termination of such power of attorney and (ii) the termination of the Trust
Fund. The Depositor agrees to promptly furnish to the Securities
Administrator, from time to time upon request, such further information,
reports and financial statements within its control related to this Agreement
and the Mortgage Loans as the Securities Administrator reasonably deems
appropriate to prepare and file all necessary reports with the Commission.
The Securities Administrator shall have no responsibility to file any items
other than those specified in this Section 3.18; provided, however, the
Securities Administrator will cooperate with the Depositor in connection with
any additional filings with respect to the Trust Fund as the Depositor deems
necessary under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Fees and expenses incurred by the Securities Administrator
in connection with this Section 3.18 shall not be reimbursable from the Trust
Fund.
Section 3.19 The Company. On the Closing Date, the Company will receive from
the Depositor a payment of $5,000.
Section 3.20 UCC. The Depositor shall inform the Trustee in writing of any
Uniform Commercial Code financing statements that were filed on the Closing
Date in connection with the Trust with stamped recorded copies of such
financing statements to be delivered to the Trustee promptly upon receipt by
the Depositor. The Trustee agrees to monitor and notify the Depositor if any
continuation statements for such Uniform Commercial Code financing statements
need to be filed. If directed by the Depositor in writing, the Trustee will
file any such continuation statements solely at the expense of the
Depositor. The Depositor shall file any financing statements or amendments
thereto required by any change in the Uniform Commercial Code.
Section 3.21 Optional Purchase of Defaulted Mortgage Loans.
(a) With respect to any Mortgage Loan which as of the first day of a Fiscal
Quarter is delinquent in payment by 90 days or more or is an REO Property,
the Company shall have the right to purchase such Mortgage Loan from the
Trust at a price equal to the Repurchase Price; provided, however, (i) that
such Mortgage Loan is still 90 days or more delinquent or is an REO Property
as of the date of such purchase and (ii) this purchase option, if not
theretofore exercised, shall terminate on the date prior to the last day of
the related Fiscal Quarter. This purchase option, if not exercised, shall
not be thereafter reinstated unless the delinquency is cured and the Mortgage
Loan thereafter again becomes 90 days or more delinquent or becomes an REO
Property, in which case the option shall again become exercisable as of the
first day of the related Fiscal Quarter.
(b) If at any time the Company remits to the Master Servicer a payment for
deposit in the Master Servicer Collection Account covering the amount of the
Repurchase Price for such a Mortgage Loan, and the Company provides to the
Trustee a certification signed by a Servicing Officer stating that the amount
of such payment has been deposited in the Master Servicer Collection Account,
then the Trustee shall execute the assignment of such Mortgage Loan to the
Company at the request of the Company without recourse, representation or
warranty and the Company shall succeed to all of the Trustee's right, title
and interest in and to such Mortgage Loan, and all security and documents
relative thereto. Such assignment shall be an assignment outright and not
for security. The Company will thereupon own such Mortgage, and all such
security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
ARTICLE IV
Accounts
Section 4.01 Protected Accounts. (a) The Master Servicer shall enforce the
obligation of each Servicer to establish and maintain a Protected Account in
accordance with the applicable Servicing Agreement, with records to be kept
with respect thereto on a Mortgage Loan by Mortgage Loan basis, into which
accounts shall be deposited within 48 hours (or as of such other time
specified in the related Servicing Agreement) of receipt, all collections of
principal and interest on any Mortgage Loan and with respect to any REO
Property received by a Servicer, including Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds and advances made from the Servicer's own
funds (less servicing compensation as permitted by the applicable Servicing
Agreement in the case of any Servicer) and all other amounts to be deposited
in the Protected Account. The Servicer is hereby authorized to make
withdrawals from and deposits to the related Protected Account for purposes
required or permitted by this Agreement. To the extent provided in the
related Servicing Agreement, the Protected Account shall be held by a
Designated Depository Institution and segregated on the books of such
institution in the name of the Trustee for the benefit of Certificateholders.
(b) To the extent provided in the related Servicing Agreement, amounts on
deposit in a Protected Account may be invested in Permitted Investments in
the name of the Trustee for the benefit of Certificateholders and, except as
provided in the preceding paragraph, not commingled with any other funds.
Such Permitted Investments shall mature, or shall be subject to redemption or
withdrawal, no later than the date on which such funds are required to be
withdrawn for deposit in the Master Servicer Collection Account, and shall be
held until required for such deposit. The income earned from Permitted
Investments made pursuant to this Section 4.01 shall be paid to the related
Servicer under the applicable Servicing Agreement, and the risk of loss of
moneys required to be distributed to the Certificateholders resulting from
such investments shall be borne by and be the risk of the related Servicer.
The related Servicer (to the extent provided in the Servicing Agreement)
shall deposit the amount of any such loss in the Protected Account within two
Business Days of receipt of notification of such loss but not later than the
second Business Day prior to the Distribution Date on which the moneys so
invested are required to be distributed to the Certificateholders.
(c) To the extent provided in the related Servicing Agreement and subject to
this Article IV, on or before each Servicer Remittance Date, the related
Servicer shall withdraw or shall cause to be withdrawn from its Protected
Accounts and shall immediately deposit or cause to be deposited in the Master
Servicer Collection Account amounts representing the following collections
and payments (other than with respect to principal of or interest on the
Initial Mortgage Loans due on or before the Cut-off Date or principal of or
interest on Subsequent Mortgage Loans due on or before the related Subsequent
Cut-off Date) with respect to each Loan Group or Sub-Loan Group, as
applicable:
(i) Scheduled Payments on the Mortgage Loans received or any related portion
thereof advanced by such Servicer pursuant to its Servicing Agreement which
were due during or before the related Due Period, net of the amount thereof
comprising its Servicing Fee or any fees with respect to any lender-paid
primary mortgage insurance policy;
(ii) Full Principal Prepayments and any Liquidation Proceeds received by such
Servicer with respect to the Mortgage Loans in the related Prepayment Period
(or, in the case of Subsequent Recoveries, during the related Due Period),
with interest to the date of prepayment or liquidation, net of the amount
thereof comprising its Servicing Fee;
(iii) Partial Principal Prepayments received by such Servicer for the
Mortgage Loans in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals may be made from an Account only to make remittances as
provided in Section 4.01(c), 4.02 and 4.03; to reimburse the Master Servicer
or a Servicer for Monthly Advances which have been recovered by subsequent
collections from the related Mortgagor; to remove amounts deposited in error;
to remove fees, charges or other such amounts deposited on a temporary basis;
or to clear and terminate the account at the termination of this Agreement in
accordance with Section 10.01. As provided in Sections 4.01(c) and 4.02(b)
certain amounts otherwise due to the Servicers may be retained by them and
need not be deposited in the Master Servicer Collection Account.
(e) The Master Servicer shall not waive (or permit a Servicer to
waive) any Prepayment Charge unless: (i) the enforceability thereof shall
have been limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally, (ii) the
enforcement thereof is illegal, or any local, state or federal agency has
threatened legal action if the prepayment penalty is enforced, (iii) the
mortgage debt has been accelerated in connection with a foreclosure or other
involuntary payment or (iv) such waiver is standard and customary in
servicing similar Mortgage Loans and relates to a default or a reasonably
foreseeable default and would, in the reasonable judgment of the Master
Servicer, maximize recovery of total proceeds taking into account the value
of such Prepayment Charge and the related Mortgage Loan. In no event will
the Master Servicer waive a Prepayment Charge in connection with a
refinancing of a Mortgage Loan that is not related to a default or a
reasonably foreseeable default. If a Prepayment Charge is waived, but does
not meet the standards described above, then the Master Servicer is required
to pay the amount of such waived Prepayment Charge, for the benefit of the
Class R Certificates, by depositing such amount into the Master Servicer
Collection Account by the immediately succeeding Distribution Account Deposit
Date.
Section 4.02 Master Servicer Collection Account. (a) The Master Servicer
shall establish and maintain in the name of the Trustee, for the benefit of
the Certificateholders, the Master Servicer Collection Account as a
segregated trust account or accounts. The Master Servicer Collection Account
shall be an Eligible Account. The Master Servicer will deposit in the Master
Servicer Collection Account as identified by the Master Servicer and as
received by the Master Servicer, the following amounts:
(i) Any amounts withdrawn from a Protected Account;
(ii) Any Monthly Advance and any Compensating Interest Payments;
(iii) Any Insurance Proceeds or Net Liquidation Proceeds received by or on
behalf of the Master Servicer or which were not deposited in a Protected
Account;
(iv) The Repurchase Price with respect to any Mortgage Loans purchased by the
Seller pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or
2.03 hereof, any amounts which are to be treated pursuant to Section 2.04 of
this Agreement as the payment of a Repurchase Price in connection with the
tender of a Substitute Mortgage Loan by the Seller, the Repurchase Price with
respect to any Mortgage Loans purchased by the Company pursuant to
Section 3.21, and all proceeds of any Mortgage Loans or property acquired
with respect thereto repurchased by the Depositor or its designee pursuant to
Section 10.01;
(v) Any amounts required to be deposited with respect to losses on
investments of deposits in an Account;
(vi) Any amounts received by the Master Servicer in connection
with any Prepayment Charge on the Prepayment Charge Loans; and
(vii) Any other amounts received by or on behalf of the Master Servicer and
required to be deposited in the Master Servicer Collection Account pursuant
to this Agreement.
(b) All amounts deposited to the Master Servicer Collection Account shall be
held by the Master Servicer in the name of the Trustee in trust for the
benefit of the Certificateholders in accordance with the terms and provisions
of this Agreement. The requirements for crediting the Master Servicer
Collection Account or the Distribution Account shall be exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments in the nature of (i) late payment charges or assumption, tax
service, statement account or payoff, substitution, satisfaction, release and
other like fees and charges and (ii) the items enumerated in Sections
4.05(a)(i) through (iv) and (vi) through (xii) with respect to the Securities
Administrator and the Master Servicer, need not be credited by the Master
Servicer or the Servicer to the Distribution Account or the Master Servicer
Collection Account, as applicable. Amounts received by the Master Servicer in
connection with Prepayment Charges on the Prepayment Charge Loans shall be
remitted by the Master Servicer to the Securities Administrator and deposited
by the Securities Administrator into the Class XP Reserve Account upon
receipt thereof. In the event that the Master Servicer shall deposit or
cause to be deposited to the Distribution Account any amount not required to
be credited thereto, the Securities Administrator, upon receipt of a written
request therefor signed by a Servicing Officer of the Master Servicer, shall
promptly transfer such amount to the Master Servicer, any provision herein to
the contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection Account
may be invested, in the name of the Trustee, or its nominee, for the benefit
of the Certificateholders, in Permitted Investments as directed by Master
Servicer. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the next succeeding
Distribution Account Deposit Date. Any and all investment earnings and
losses on amounts on deposit in the Master Servicer Collection Account (i)
for the three calendar day period immediately prior to each Distribution
Account Deposit Date shall be for the account of the Master Servicer and (ii)
for all other dates that amounts are on deposit in the Master Servicer
Collection Account shall be for the account of the Depositor. The Master
Servicer from time to time shall be permitted to withdraw or receive
distribution of any and all investment earnings from the Master Servicer
Collection Account on behalf of itself or at the direction of the Depositor.
The risk of loss of moneys required to be distributed to the
Certificateholders resulting from such investments shall be borne by and be
the risk of the Master Servicer and the Depositor, as applicable, based on
the dates such loss is incurred. The Master Servicer or the Depositor shall
deposit the amount of any such loss in the Master Servicer Collection Account
within two Business Days of receipt of notification of such loss but not
later than the second Business Day prior to the Distribution Date on which
the moneys so invested are required to be distributed to the
Certificateholders.
Section 4.03 Permitted Withdrawals and Transfers from the Master Servicer
Collection Account. (a) The Master Servicer will, from time to time on
demand of a Servicer or the Securities Administrator, make or cause to be
made such withdrawals or transfers from the Master Servicer Collection
Account as the Master Servicer has designated for such transfer or withdrawal
pursuant to this Agreement and the related Servicing Agreement. The Master
Servicer may clear and terminate the Master Servicer Collection Account
pursuant to Section 10.01 and remove amounts from time to time deposited in
error.
(b) On an ongoing basis, the Master Servicer shall withdraw from the Master
Servicer Collection Account (i) any expenses recoverable by the Trustee, the
Master Servicer or the Securities Administrator or the Custodian pursuant to
Sections 3.03, 7.04 and 9.05 and (ii) any amounts payable to the Master
Servicer as set forth in Section 3.14.
(c) In addition, on or before each Distribution Account Deposit Date, the
Master Servicer shall deposit in the Distribution Account (or remit to the
Securities Administrator for deposit therein) any Monthly Advances required
to be made by the Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer all Available Funds on
deposit in the Master Servicer Collection Account with respect to the related
Distribution Date to the Securities Administrator for deposit in the
Distribution Account.
Section 4.04 Distribution Account. (a) The Securities Administrator shall
establish and maintain in the name of the Trustee, for the benefit of the
Certificateholders, the Distribution Account as a segregated trust account or
accounts.
(b) All amounts deposited to the Distribution Account shall be held by the
Securities Administrator in the name of the Trustee in trust for the benefit
of the Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the Trust
Fund segregated on the books of the Securities Administrator and held by the
Securities Administrator in trust in its Corporate Trust Office, and the
Distribution Account and the funds deposited therein shall not be subject to,
and shall be protected from, all claims, liens, and encumbrances of any
creditors or depositors of the Securities Administrator or the Master
Servicer (whether made directly, or indirectly through a liquidator or
receiver of the Securities Administrator or the Master Servicer). The
Distribution Account shall be an Eligible Account. The amount at any time
credited to the Distribution Account shall be (i) held in cash and fully
insured by the FDIC to the maximum coverage provided thereby or (ii) invested
in the name of the Trustee, in such Permitted Investments selected by the
Depositor or deposited in demand deposits with such depository institutions
as selected by the Depositor, provided that time deposits of such depository
institutions would be a Permitted Investment. All Permitted Investments
shall mature or be subject to redemption or withdrawal on or before, and
shall be held until, the next succeeding Distribution Date if the obligor for
such Permitted Investment is the Securities Administrator or, if such obligor
is any other Person, the Business Day preceding such Distribution Date. All
investment earnings on amounts on deposit in the Distribution Account or
benefit from funds uninvested therein from time to time shall be for the
account of the Depositor. The Depositor shall be permitted to withdraw or
receive distribution of any and all investment earnings from the Distribution
Account on each Distribution Date. If there is any loss on a Permitted
Investment or demand deposit, the Depositor shall remit the amount of such
loss to the Securities Administrator for deposit in the Distribution
Account. With respect to the Distribution Account and the funds deposited
therein, the Securities Administrator shall take such action as may be
necessary to ensure that the Certificateholders shall be entitled to the
priorities afforded to such a trust account (in addition to a claim against
the estate of the Trustee) as provided by 12 U.S.C. § 92a(e), and applicable
regulations pursuant thereto, if applicable, or any applicable comparable
state statute applicable to state chartered banking corporations.
Section 4.05 Permitted Withdrawals and Transfers from the Distribution
Account. (a) The Securities Administrator will, from time to time on demand
of the Master Servicer, make or cause to be made such withdrawals or
transfers from the Distribution Account as the Master Servicer has designated
for such transfer or withdrawal pursuant to this Agreement and the Servicing
Agreements or as the Securities Administrator deems necessary for the
following purposes (limited in the case of amounts due the Master Servicer to
those not withdrawn from the Master Servicer Collection Account in accordance
with the terms of this Agreement):
(i) to reimburse the Master Servicer or any Servicer for any Monthly Advance
of its own funds, the right of the Master Servicer or a Servicer to
reimbursement pursuant to this subclause (i) being limited to amounts
received on a particular Mortgage Loan (including, for this purpose, the
Repurchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late payments or recoveries of the principal of or interest on such
Mortgage Loan with respect to which such Monthly Advance was made;
(ii) to reimburse the Master Servicer or any Servicer from Insurance Proceeds
or Liquidation Proceeds relating to a particular Mortgage Loan for amounts
expended by the Master Servicer or such Servicer in good faith in connection
with the restoration of the related Mortgaged Property which was damaged by
an Uninsured Cause or in connection with the liquidation of such Mortgage
Loan;
(iii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses incurred
with respect to such Mortgage Loan and to reimburse the Master Servicer or
such Servicer from Liquidation Proceeds from a particular Mortgage Loan for
Liquidation Expenses incurred with respect to such Mortgage Loan; provided
that the Master Servicer shall not be entitled to reimbursement for
Liquidation Expenses with respect to a Mortgage Loan to the extent that
(i) any amounts with respect to such Mortgage Loan were paid as Excess
Liquidation Proceeds pursuant to clause (xi) of this Section 4.05(a) to the
Master Servicer; and (ii) such Liquidation Expenses were not included in the
computation of such Excess Liquidation Proceeds;
(iv) to pay the Master Servicer or any Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Mortgage Loan, the amount which the Master Servicer or
such Servicer would have been entitled to receive under clause (ix) of this
Section 4.05(a) as servicing compensation on account of each defaulted
scheduled payment on such Mortgage Loan if paid in a timely manner by the
related Mortgagor;
(v) to pay the Master Servicer or any Servicer from the Repurchase Price for
any Mortgage Loan, the amount which the Master Servicer or such Servicer
would have been entitled to receive under clause (ix) of this Section 4.05(a)
as servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for advances of funds
(other than Monthly Advances) made with respect to the Mortgage Loans, and
the right to reimbursement pursuant to this clause being limited to amounts
received on the related Mortgage Loan (including, for this purpose, the
Repurchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late recoveries of the payments for which such advances were made;
(vii) to reimburse the Master Servicer or any Servicer for any Nonrecoverable
Advance that has not been reimbursed pursuant to clauses (i) and (vi);
(viii) to pay the Master Servicer as set forth in Section 3.14;
(ix) to reimburse the Master Servicer for expenses, costs and liabilities
incurred by and reimbursable to it pursuant to Sections 3.03, 7.04(c) and (d);
(x) to pay to the Master Servicer, as additional servicing compensation, any
Excess Liquidation Proceeds to the extent not retained by the related
Servicer;
(xi) to reimburse or pay any Servicer any such amounts as are due thereto
under the applicable Servicing Agreement and have not been retained by or
paid to the Servicer, to the extent provided in the related Servicing
Agreement;
(xii) to reimburse the Trustee, the Securities Administrator or the Custodian
for expenses, costs and liabilities incurred by or reimbursable to it
pursuant to this Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant to
Section 10.01.
(b) The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis and shall provide a copy to the
Securities Administrator, for the purpose of accounting for any reimbursement
from the Distribution Account pursuant to clauses (i) through (vi) and (viii)
or with respect to any such amounts which would have been covered by such
clauses had the amounts not been retained by the Master Servicer without
being deposited in the Distribution Account under Section 4.02(b).
Reimbursements made pursuant to clauses (vii), (ix), (xi) and (xii) will be
allocated between the Loan Groups or Sub-Loan Groups, as applicable, pro rata
based on the aggregate Stated Principal Balances of the Mortgage Loans in
each Loan Group or Sub-Loan Group, as applicable.
(c) On each Distribution Date, the Securities Administrator shall distribute
the Interest Funds, Principal Funds and Available Funds to the extent on
deposit in the Distribution Account for each Loan Group or Sub-Loan Group, as
applicable, to the Holders of the related Certificates in accordance with
Section 6.01.
Section 4.06 Reserve Fund. (a) On or before the Closing Date, the
Securities Administrator shall establish a Reserve Fund in the name of the
Trustee on behalf of the Holders of the Group I Certificates. The Reserve
Fund must be an Eligible Account. The Reserve Fund shall be entitled "Reserve
Fund, JPMorgan Chase Bank, National Association as Trustee for the benefit of
holders of Structured Asset Mortgage Investments II Inc., Bear Xxxxxxx ALT-A
Trust 2005-9, Mortgage Pass-Through Certificates, Series 2005-9, Class
I-1A-1, Class I-1A-2, Class I-M-1, Class I-M-2, Class I-B-1, Class I-B-2 and
Class I-B-3". The Securities Administrator shall demand payment of all money
payable by the Counterparty under the Cap Contracts. The Securities
Administrator shall deposit in the Reserve Fund all payments received by it
from the Counterparty pursuant to the Cap Contracts and, prior to
distribution of such amounts pursuant to Section 6.01.1(a), all payments
described under the eighth and ninth clauses of Section 6.01.1(a). On each
Distribution Date, the Securities Administrator shall remit amounts received
by it from the Counterparty to the Holders of the applicable Group I
Certificates in the manner provided in Section 6.01.1(b).
(b) The Reserve Fund is an "outside reserve fund" within the meaning
of Treasury Regulation '1.860G-2(h) and shall be an asset of the Trust Fund
but not an asset of any 2005-9 REMIC. The Securities Administrator on behalf
of the Trust shall be the nominal owner of the Reserve Fund. For federal
income tax purposes, the Class B-IO Certificateholder shall be the beneficial
owner of the Reserve Fund, subject to the power of the Securities
Administrator to distribute amounts under Section 6.01.1(b) and the eighth
and ninth clauses of Section 6.01.1(a) and shall report items of income,
deduction, gain or loss arising therefrom. For federal income tax purposes,
amounts distributed to Certificateholders pursuant to the eighth and ninth
clauses of Section 6.01.1(a) will be treated as first distributed to the
Class B-IO Certificates and then paid from the Class B-IO Certificateholders
to the applicable holders of the Group I Certificates. Amounts in the Reserve
Fund shall, at the written direction of the Class B-IO Certificateholder, be
held either uninvested in a trust or deposit account of the Securities
Administrator with no liability for interest or other compensation thereon or
invested in Permitted Investments that mature no later than the Business Day
prior to the next succeeding Distribution Date. To the extent that the Class
B-IO Certificateholders have provided the Securities Administrator with such
written direction to invest such funds in Permitted Investments, on each
Distribution Date the Securities Administrator shall distribute all net
income and gain from such Permitted Investments in the Reserve Fund to the
Class B-IO Certificateholder, not as a distribution in respect of any
interest in any 2005-9 REMIC. All amounts earned on amounts on deposit in the
Reserve Fund shall be taxable to the Class B-IO Certificateholder. Any losses
on such Permitted Investments shall not in any case be a liability of the
Securities Administrator but an amount equal to such losses shall be given by
the Class B-IO Certificateholder to the Securities Administrator out of the
Class B-IO Certificateholders' own funds immediately as realized, for deposit
by the Securities Administrator into the Reserve Fund.
Section 4.07 Class XP Reserve Account. (a) The Master Servicer shall
establish and maintain with itself a separate, segregated trust account,
which shall be an Eligible Account, titled "Reserve Account, Xxxxx Fargo
Bank, National Association, as Master Servicer f/b/o Bear Xxxxxxx ALT-A Trust
2005-9, Mortgage Pass-Through Certificates, Series 2005-9, Class XP". On the
Closing Date, the Depositor shall deposit $100 into the Class XP Reserve
Account. Funds on deposit in the Class XP Reserve Account shall be held in
trust by the Master Servicer for the holder of the Class XP Certificates.
The Class XP Reserve Account will not represent an interest in any REMIC.
(b) Any amount on deposit in the Class XP Reserve Account shall be
held uninvested. On the Business Day prior to each Distribution Date, the
Securities Administrator shall withdraw the amount then on deposit in the
Class XP Reserve Account and deposit such amount into the Distribution
Account to be distributed to the Holders of the Class XP Certificates in
accordance with Section 6.01.1(c). In addition, on the earlier of (x) the
Business Day prior to the Distribution Date on which all the assets of the
Trust Fund are repurchased as described in Section 10.01(a) and (y) the
Business Day prior to the Distribution Date occurring in September 2011, the
Master Servicer shall withdraw the amount on deposit in the Class XP Reserve
Account deposit such amount into the Distribution Account and remit such
amount to the Securities Administrator and provide written instruction to the
Securities Administrator to pay such amount to the Class XP Certificates in
accordance with Section 6.01.1(c), and following such withdrawal the Class XP
Reserve Account shall be closed.
Section 4.08 Cap Reserve Account. (a) The Securities Administrator
shall establish and maintain in the name of the Trustee on behalf of the
Trust, for the benefit of the Certificateholders, the Cap Reserve Account as
a segregated trust account or accounts.
(b) All amounts deposited to the Cap Reserve Account pursuant to
Section 6.01.1(b) shall be held by the Securities Administrator in the name
of the Trustee on behalf of the Trust, in trust for the benefit of the Group
I Offered Certificateholders and the Class I-B-3 Certificateholders in
accordance with the terms and provisions of this Agreement.
(c) The Cap Reserve Account is an "outside reserve fund" within the
meaning of Treasury Regulation '1.860G-2(h) and shall be an asset of the
Trust Fund but not an asset of any 2005-1 REMIC. The Securities Administrator
on behalf of the Trust shall be the nominal owner of the Cap Reserve Account.
The Class B-IO Certificateholder shall be the beneficial owner of the Cap
Reserve Account, subject to the power of the Securities Administrator to
distribute amounts under Section 6.01.1. Amounts in the Cap Reserve Account
shall, at the direction of the Class B-IO Certificateholder, be held either
uninvested in a trust or deposit account of the Securities Administrator with
no liability for interest or other compensation thereon or invested in
Permitted Investments in the name of the Trustee as selected by the Class
B-IO Certificateholder that mature no later than the Business Day prior to
the next succeeding Distribution Date. Any losses on such investments shall
be deposited in the Cap Reserve Account by the Class B-IO Certificateholder
out of its own funds immediately as realized.
(d) On each Distribution Date, the Securities Administrator shall
distribute amounts on deposit in the Cap Reserve Account to the Holders of
the Group I Certificates in accordance with Section 6.01.1(b).
Section 4.09 Pre-Funding Accounts and Pre-Funding Reserve Accounts.
(a) No later than the Closing Date, the Paying Agent shall establish
and maintain a segregated trust account or sub-account of a trust account,
which shall be titled "Pre-Funding Account, JPMorgan Chase Bank, National
Association, as trustee for the benefit of holders of Structured Asset
Mortgage Investments II Inc., Bear Xxxxxxx ALT-A Trust, Mortgage Pass-Through
Certificates, Series 2005-9" (the "Pre-Funding Account"). The Pre-Funding
Account shall be an Eligible Account or a sub account of an Eligible Account.
The Paying Agent shall, promptly upon receipt, deposit in the Pre-Funding
Account and retain therein the Pre-Funded Amount remitted on the Closing Date
to the Paying Agent by the Depositor. Funds deposited in the Pre-Funding
Account shall be held in trust by the Paying Agent for the Holders of the
Certificates related to Loan Group I, Sub-Loan Group II-1, Sub-Loan Group
II-2, Sub-Loan Group II-3, Sub-Loan Group II-4, Sub-Loan Group II-5, and
Sub-Loan Group II-6 for the uses and purposes set forth herein.
(b) The Paying Agent will invest funds deposited in the Pre-Funding
Account as directed by the Depositor or its designee in writing in Permitted
Investments with a maturity date (i) no later than the Business Day
immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other
than the Paying Agent or an Affiliate of the Paying Agent is the obligor for
the Permitted Investment, or (ii) no later than the date on which such funds
are required to be withdrawn from such account or sub account of a trust
account pursuant to this Agreement, if the Paying Agent or an affiliate of
the Paying Agent is the obligor for the Permitted Investment (or, if no
written direction is received by the Paying Agent from the Depositor, then
funds in such account shall remain uninvested). For federal income tax
purposes, the Depositor or its designee shall be the owner of the Pre-Funding
Account and shall report all items of income, deduction. gain or loss arising
therefrom. All income and gain realized from investment of funds deposited in
the Pre-Funding Account shall be transferred to the Interest Coverage Account
at the following times: (i) on the Business Day immediately preceding each
Distribution Date, if a Person other than the Paying Agent or an Affiliate of
the Paying Agent is the obligor for the Permitted Investment, or on each
Distribution Date, if the Paying Agent or an Affiliate of the Paying Agent is
the obligor for the Permitted Investment, (ii) on the Business Day
immediately preceding each Subsequent Transfer Date, if a Person other than
the Paying Agent or an Affiliate of the Paying Agent is the obligor for the
Permitted Investment, or on each Subsequent Transfer Date, if the Paying
Agent or an Affiliate of the Paying Agent is the obligor for the Permitted
Investment or (iii) within one Business Day of the Paying Agent's receipt
thereof. Such transferred funds shall not constitute income and gain for
purposes of Section 4.10(b) hereof. The Depositor or its designee shall
deposit in the Pre-Funding Account the amount of any net loss incurred in
respect of any such Permitted Investment immediately upon realization of such
loss without any right of reimbursement therefor. At no time will the
Pre-Funding Account be an asset of any REMIC created hereunder.
(c) Amounts on deposit in the Pre-Funding Account shall be withdrawn
by the Paying Agent as follows:
(i) On any Subsequent Transfer Date, the Paying Agent shall
withdraw from the Pre-Funding Account an amount equal to 100% of the
Stated Principal Balances of the Subsequent Mortgage Loans transferred
and assigned to the Trustee on behalf of the Trust for deposit in the
related Loan Group or Sub-Loan Group on such Subsequent Transfer Date
and deposit such amount into the Pre-Funding Reserve Account;
(ii) If the amount on deposit in the Pre-Funding Account
(exclusive of investment income) has not been reduced to zero by the
close of business on the date of termination of the Pre-Funding Period,
then at the close of business on such date, the Paying Agent shall
deposit into the Pre-Funding Reserve Account any amounts remaining in
the Pre-Funding Account (exclusive of investment income) for
distribution in accordance with Section 4.09(e)(ii);
(iii) To withdraw any amount not required to be deposited in the
Pre-Funding Account or deposited therein in error; and
(iv) Upon the earliest of (i) the reduction of the Principal
Balances of the Certificates to zero or (ii) the termination of this
Agreement in accordance with Section 10.01, to withdraw (and deposit in
the Pre-Funding Reserve Account) any amount remaining on deposit in the
Pre-Funding Account for payment to the related Certificateholders then
entitled to distributions in respect of principal until the Principal
Balance of the Certificates has been reduced to zero, and any remaining
amount to the Depositor.
Withdrawals pursuant to clauses (i), (ii) and (iv) shall be treated as
contributions of cash to REMIC II on the date of withdrawal.
(d) No later than the Closing Date, the Paying Agent shall establish
and maintain a segregated trust account or a sub-account of a trust account,
which shall be titled "Pre-Funding Reserve Account, JPMorgan Chase Bank,
National Association as Trustee for the benefit of holders of Structured
Asset Mortgage Investments II Inc., Bear Xxxxxxx ALT-A Trust, Mortgage
Pass-Through Certificates, Series 2005-9" (the "Pre-Funding Reserve
Account"). The Pre-Funding Reserve Account shall be an Eligible Account or a
sub account of an Eligible Account. The Paying Agent shall, at the close of
business on the day of the termination of the Pre-Funding Period, deposit in
the Pre-Funding Reserve Account and retain therein any funds remaining in the
Pre-Funding Account at the close of business on such day. Funds deposited in
the Pre-Funding Reserve Account shall be held in trust by the Paying Agent
for the Certificateholders for the uses and purposes set forth herein.
(e) The Paying Agent shall not invest funds deposited in the Pre-Funding
Reserve Account. The Pre-Funding Reserve Account and any funds on deposit
therein shall be assets of REMIC II. Amounts on deposit in the Pre-Funding
Account shall be withdrawn by the Paying Agent as follows:
(i) On any Subsequent Transfer Date, the Paying Agent shall withdraw from the
Pre-Funding Reserve Account the amount deposited therein on such date
pursuant to Section 4.09(c)(i) in respect of a Subsequent Mortgage
transferred and assigned to the Trustee on behalf of the Trust for
deposit in the related Loan Group or Sub-Loan Group on such Subsequent
Transfer Date and pay such amount to or upon the order of the Depositor
upon satisfaction of the conditions set forth in Section 2.07 with
respect to such transfer and assignment;
(ii) On the Distribution Date immediately following termination of the
Pre-Funding Period, the Paying Agent shall withdraw from the
Pre-Funding Reserve Account the Remaining Pre-Funded Amount for the
related Loan Group or Sub-Loan Group deposited therein on such date
pursuant to Section 4.09(c)(ii) for distribution to the related
Certificate Groups pursuant to Section 6.01.1(a) and Section 6.01.2(a);
and
(iii) On each Distribution Date during the Pre-Funding Period and the
Distribution Date immediately following termination of the Pre-Funding
Period, the Paying Agent shall withdraw from the Pre-Funding Reserve
Account the amount deposited therein on such date pursuant to Section
4.09(c) for distribution as Interest Funds with respect to Loan Group I
pursuant to Section 6.01.1(a) and Available Funds with respect to each
Sub-Loan Group in Loan Group II pursuant to Section 6.01.2(a).
Section 4.10 Interest Coverage Account.
(a) No later than the Closing Date, the Paying Agent shall establish
and maintain a segregated trust account or a sub account of a trust account,
which shall be titled "Interest Coverage Account, JPMorgan Chase Bank,
National Association as trustee for the benefit of holders of Structured
Asset Mortgage Investments Inc., Bear Xxxxxxx ALT-A Trust, Mortgage
Pass-Through Certificates, Series 2005-9" (the "Interest Coverage Account").
The Interest Coverage Account shall be an Eligible Account or a sub account
of an Eligible Account. The Paying Agent shall, promptly upon receipt,
deposit in the Interest Coverage Account and retain therein the Interest
Coverage Amount for each Loan Group or Sub-Loan Group remitted on the Closing
Date to the Paying Agent by the Depositor and all income and gain realized
from investment of funds deposited in the Pre-Funding Account pursuant to
Section 4.09(b). Funds deposited in the Interest Coverage Account shall be
held in trust by the Paying Agent for the Certificateholders for the uses and
purposes set forth herein.
(b) For federal income tax purposes, the Depositor shall be the owner
of the Interest Coverage Account and shall report all items of income,
deduction, gain or loss arising therefrom. At no time will the Interest
Coverage Account be an asset of any REMIC created hereunder. All income and
gain realized from investment of funds deposited in the Interest Coverage
Account, which investment shall be made solely upon the written direction of
the Depositor, shall be for the sole and exclusive benefit of the Depositor
and shall be remitted by the Paying Agent to the Depositor no later than the
first Business Day following receipt of such income and gain by the Paying
Agent. If no written direction with respect to such investment shall be
received by the Paying Agent from the Depositor, then funds in such Account
shall remain uninvested. The Depositor shall deposit in the Interest
Coverage Account the amount of any net loss incurred in respect of any such
Permitted Investment immediately upon realization of such loss.
(c) On each Distribution Date during the Pre-Funding Period and on
the day of termination of the Pre-Funding Period, the Paying Agent shall
withdraw from the Interest Coverage Account and deposit in the Pre-Funding
Reserve Account an amount of interest that accrues during the related
Interest Accrual Period at the Weighted Average Group Pass Through Rate for
the related Loan Group or Sub-Loan Group on the excess, if any, of the
Pre-Funded Amount for such Loan Group or Sub-Loan Group over the aggregate
Stated Principal Balance of Subsequent Mortgage Loans in such Loan Group or
Sub-Loan Group that both (i) had a Due Date during the Due Period relating to
such Distribution Date or the Distribution Date following the end of the
Pre-Funding Period, as applicable, and (ii) had a Subsequent Cut-off Date
prior to the first day of the month in which such Distribution Date occurs.
Such withdrawal and deposit shall be treated as a contribution of cash by the
Mortgage Loan Seller to REMIC II on the date thereof. Immediately following
any such withdrawal and deposit, and immediately following the conveyance of
any Subsequent Mortgage to the Trust on any Subsequent Transfer Date, the
Paying Agent shall, at the request of the Mortgage Loan Seller, withdraw from
the Interest Coverage Account and remit to the Mortgage Loan Seller or its
designee an amount equal to the excess, if any, of the amount remaining in
such Interest Coverage Account over the amount that would be required to be
withdrawn therefrom (assuming sufficient funds therein) pursuant to the
second preceding sentence on each subsequent Distribution Date, if any, that
will occur during the Pre-Funding Period or on the day of termination of the
Pre-Funding Period, if no Subsequent Mortgage were acquired by the Trust Fund
after the end of the Prepayment Period relating to the current Distribution
Date or the Distribution Date following the end of the Pre-Funding Period, as
applicable. On the day of termination of the Pre-Funding Period, the Paying
Agent shall withdraw from the Interest Coverage Account and remit to the
Mortgage Loan Seller or its designee the amount remaining in such Interest
Coverage Account after payment of the amount required to be withdrawn
therefrom pursuant to the second preceding sentence on the day of termination
of the Pre-Funding Period.
(d) Upon the earliest of (i) the Distribution Date immediately
following the end of the Pre-Funding Period, (ii) the reduction of the
principal balances of the Certificates to zero or (iii) the termination of
this Agreement in accordance with Section 10.01, any amount remaining on
deposit in the Interest Coverage Account after distributions pursuant to
paragraph (c) above shall be withdrawn by the Paying Agent and paid to the
Seller or its designee.
ARTICLE V
Certificates
Section 5.01 Certificates. (a) The Depository, the Depositor and the
Securities Administrator have entered into a Depository Agreement dated as of
the Closing Date (the "Depository Agreement"). Except for the Residual
Certificates, the Private Certificates and the Individual Certificates and as
provided in Section 5.01(b), the Certificates shall at all times remain
registered in the name of the Depository or its nominee and at all times:
(i) registration of such Certificates may not be transferred by the
Securities Administrator except to a successor to the Depository;
(ii) ownership and transfers of registration of such Certificates on the
books of the Depository shall be governed by applicable rules established by
the Depository; (iii) the Depository may collect its usual and customary
fees, charges and expenses from its Depository Participants; (iv) the
Securities Administrator shall deal with the Depository as representative of
such Certificate Owners of the respective Class of Certificates for purposes
of exercising the rights of Certificateholders under this Agreement, and
requests and directions for and votes of such representative shall not be
deemed to be inconsistent if they are made with respect to different
Certificate Owners; and (v) the Trustee and the Securities Administrator may
rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants.
The Residual Certificates and the Private Certificates are initially
Physical Certificates. If at any time the Holders of all of the Certificates
of one or more such Classes request that the Securities Administrator cause
such Class to become Global Certificates, the Securities Administrator and
the Depositor will take such action as may be reasonably required to cause
the Depository to accept such Class or Classes for trading if it may legally
be so traded.
All transfers by Certificate Owners of such respective Classes of
Book-Entry Certificates and any Global Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owners. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners
it represents or of brokerage firms for which it acts as agent in accordance
with the Depository's normal procedures.
(b) If (i)(A) the Depositor advises the Securities Administrator in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor within 30 days or (ii) the Depositor at its option
advises the Securities Administrator in writing that it elects to terminate
the book-entry system through the Depository, the Securities Administrator
shall request that the Depository notify all Certificate Owners of the
occurrence of any such event and of the availability of definitive, fully
registered Certificates to Certificate Owners requesting the same. Upon
surrender to the Securities Administrator of the Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration, the Securities Administrator shall issue the definitive
Certificates.
In addition, if an Event of Default has occurred and is continuing,
each Certificate Owner materially adversely affected thereby may at its
option request a definitive Certificate evidencing such Certificate Owner's
interest in the related Class of Certificates. In order to make such
request, such Certificate Owner shall, subject to the rules and procedures
of the Depository, provide the Depository or the related Depository
Participant with directions for the Securities Administrator to exchange or
cause the exchange of the Certificate Owner's interest in such Class of
Certificates for an equivalent interest in fully registered definitive
form. Upon receipt by the Securities Administrator of instructions from the
Depository directing the Securities Administrator to effect such exchange
(such instructions to contain information regarding the Class of
Certificates and the Certificate Principal Balance being exchanged, the
Depository Participant account to be debited with the decrease, the
registered holder of and delivery instructions for the definitive
Certificate, and any other information reasonably required by the Securities
Administrator), (i) the Securities Administrator shall instruct the
Depository to reduce the related Depository Participant's account by the
aggregate Certificate Principal Balance of the definitive Certificate, (ii)
the Securities Administrator shall execute and deliver, in accordance with
the registration and delivery instructions provided by the Depository, a
Definitive Certificate evidencing such Certificate Owner's interest in such
Class of Certificates and (iii) the Securities Administrator shall execute a
new Book-Entry Certificate reflecting the reduction in the aggregate
Certificate Principal Balance of such Class of Certificates by the amount of
the definitive Certificates.
Neither the Depositor nor the Securities Administrator shall be liable
for any delay in the delivery of any instructions required pursuant to this
Section 5.01(b) and may conclusively rely on, and shall be protected in
relying on, such instructions.
(c) (i) As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the Group II Mortgage Loans
and certain other related assets subject to this Agreement as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC I." Component I of the Class R Certificates will
represent the sole Class of "residual interests" in REMIC I for purposes of
the REMIC Provisions (as defined herein) under federal income tax law. The
following table irrevocably sets forth the designation, Uncertificated
Pass-Through Rate and initial Uncertificated Principal Balance for each of
the "regular interests" in REMIC I and the designation and Certificate
Principal Balance of the Class R Certificates allocable to Component I of the
Class R Certificates. None of the REMIC I Regular Interests will be
certificated.
Class Initial
Designation for Uncertificated Uncertificated
each REMIC I Type of Pass-Through Principal Final Maturity
Interest Interest Rate Balance Date*
----------------------------------------------------------------------
Class Y-1 Regular Variable(1) $ 127,068.79 October 2035
Class Y-2 Regular Variable(2) $ 230,209.79 October 2035
Class Y-3 Regular Variable(3) $ 88,297.19 October 2035
Class Y-4 Regular Variable(4) $ 109,432.80 October 2035
Class Y-5 Regular Variable(5) $ 92,949.24 October 2035
Class Y-6 Regular Variable(6) $ 209,095.20 October 2035
Class Z-1 Regular Variable(1) $254,010,509.21 October 2035
Class Z-2 Regular Variable(2) $462,445,640.21 October 2035
Class Z-3 Regular Variable(3) $177,372,926.09 October 2035
Class Z-4 Regular Variable(4) $219,828,696.20 October 2035
Class Z-5 Regular Variable(5) $186,716,521.76 October 2035
Class Z-6 Regular Variable(6) $417,981,300.80 October 2035
Component I of
the Class R
Certificates Residual (7) $100 October 2035
* The Distribution Date in the specified month, which is the month following
the month the latest maturing Mortgage Loan in the related Sub-Loan Group
matures. For federal income tax purposes, for each Class of REMIC I
Interests, the "latest possible maturity date" shall be the Final Maturity
Date.
(1) Interest distributed to the REMIC I Regular Interests Y-1 and Z-1
on each Distribution Date will have accrued at the weighted average of the
Net Rates for the Sub-Loan Group II-1 Mortgage Loans on the applicable
Uncertificated Principal Balance outstanding immediately before such
Distribution Date.
(2) Interest distributed to the REMIC I Regular Interests Y-2 and Z-2 on
each Distribution Date will have accrued at the weighted average of the
Net Rates for the Sub-Loan Group II-2 Mortgage Loans on the applicable
Uncertificated Principal Balance outstanding immediately before such
Distribution Date.
(3) Interest distributed to the REMIC I Regular Interests Y-3 and Z-3
on each Distribution Date will have accrued at the weighted average of the
Net Rates for the Sub-Loan Group II-3 Mortgage Loans on the applicable
Uncertificated Principal Balance outstanding immediately before such
Distribution Date.
(4) Interest distributed to the REMIC I Regular Interests Y-4 and Z-4
on each Distribution Date will have accrued at the weighted average of the
Net Rates for the Sub-Loan Group II-4 Mortgage Loans on the applicable
Uncertificated Principal Balance outstanding immediately before such
Distribution Date.
(5) Interest distributed to the REMIC I Regular Interests Y-5 and Z-5
on each Distribution Date will have accrued at the weighted average of the
Net Rates for the Sub-Loan Group II-5 Mortgage Loans on the applicable
Uncertificated Principal Balance outstanding immediately before such
Distribution Date.
(6) Interest distributed to the REMIC I Regular Interests Y-6 and Z-6 on
each Distribution Date will have accrued at the weighted average of the
Net Rates for the Sub-Loan Group II-6 Mortgage Loans on the applicable
Uncertificated Principal Balance outstanding immediately before such
Distribution Date.
(7) Component I of the Class R Certificates will not bear interest.
(ii) As provided herein, the REMIC Administrator
will make an election to treat the segregated pool of assets consisting of
the Group I Loans and certain other related assets subject to this Agreement
as a REMIC for federal income tax purposes, and such segregated pool of
assets will be designated as "REMIC II." Component II of the Class R
Certificates will represent the sole Class of "residual interests" in
REMIC II for purposes of the REMIC Provisions under federal income tax law.
The following table irrevocably sets forth the designation, Uncertificated
Pass-Through Rate and initial Uncertificated Principal Balance for each of
the "regular interests" in REMIC II and the designation and Certificate
Principal Balance of the Class R Certificates allocable to Component II of
the Class R Certificates. None of the REMIC II Regular Interests will be
certificated.
Class Designation Type Uncertificated Initial
for each REMIC II of Pass-Through Uncertificated Final Maturity
Interest Interest Rate Principal Balance Date*
----------------- -------- ------------ ----------------- --------------
LT1 Regular Variable(1) $778,237,011.76 October 2035
LT2 Regular Variable(1) $ 20,577.18 October 2035
LT3 Regular 0.00% $ 57,260.03 October 2035
LT4 Regular Variable(2) $ 57,260.03 October 2035
Component II of
the Class R
Certificates Residual (3) $0 October 2035
_______________
* 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 II
Interests, the "latest possible maturity date" shall be the Final Maturity
Date.
(1) The Class LT1 and LT2 REMIC II Regular Interests will bear
interest at a variable rate equal to the weighted average of the Net Rates
on the Group I Mortgage Loans.
(2) Class LT4 REMIC II Regular Interests will bear interest at a
variable rate equal to twice the weighted average of the Net Rates on the
Group I Mortgage Loans
(3) Component II of the Class R Certificates will not bear interest.
(iii) As provided herein, the REMIC Administrator will make
an election to treat the segregated pool of assets consisting of the REMIC I
Regular Interests and any proceeds thereof as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as
"REMIC III." Component III of the Class R Certificates will represent the
sole Class of "residual interests" in REMIC III for purposes of the REMIC
Provisions under federal income tax law. The following table irrevocably
sets forth the designation, Uncertificated Pass-Through Rate and initial
Uncertificated Principal Balance for each of the "regular interests" in
REMIC III and the designation and Certificate Principal Balance of the Class
R Certificates allocable to Component III of the Class R Certificates.
Initial
Class Designation Uncertificated
for each REMIC III Type of Principal Uncertificated
Interest Interest Balance Pass-Through Rate
------------------ -------- -------------- -----------------
II-1A-1 Regular $216,271,300 (1)
II-1A-2 Regular $18,933,000 (1)
II-2A-1 Regular $428,206,400 (2)
II-3A-1 Regular $151,019,300 (3)
II-3A-2 Regular $13,221,000 (3)
II-4A-1 Regular $203,552,700 (4)
II-5A-1 Regular $145,057,100 (5)
II-5A-2 Regular $27,835,000 (5)
II-6A-1 Regular $370,307,200 (6)
II-6A-2 Regular $16,728,000 (6)
II-B-1 Regular $6,017,200 (7)
II-B-2 Regular $6,017,300 (7)
II-B-3 Regular $6,876,800 (7)
II-B-4 Regular $15,472,900 (7)
II-B-5 Regular $11,174,800 (7)
II-B-6 Regular $7,736,848 (7)
Component III of the Residual $0 (8)
Class R Certificates
-----------------
(1) The Class II-1A-1 REMIC III Regular Interests and the Class II-1A-2 REMIC
III Regular Interests will bear interest at a variable rate equal to the
weighted average of the Net Rates of the Sub-Loan Group II-1 Mortgage
Loans.
(2) The Class II-2A-1 REMIC III Regular Interests and the Class II-2A-2 REMIC
III Regular Interests will bear interest at a variable rate equal to the
weighted average of the Net Rates of the Sub-Loan Group II-2 Mortgage
Loans.
(3) The Class II-3A-1 REMIC III Regular Interests and the Class II-3A-2 REMIC
III Regular Interests will bear interest at a variable rate equal to the
weighted average of the Net Rates of the Sub-Loan Group II-3 Mortgage
Loans.
(4) The Class II-4A-1 REMIC III Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the
Sub-Loan Group II-4 Mortgage Loans.
(5) The Class II-5A-1 REMIC III Regular Interests and the Class II-5A-2 REMIC
III Regular Interests will bear interest at a variable rate equal to the
weighted average of the Net Rates of the Sub-Loan Group II-5 Mortgage
Loans.
(6) The Class II-6A-1 REMIC III Regular Interests and the Class II-6A-2 REMIC
III Regular Interests will bear interest at a variable rate equal to the
weighted average of the Net Rates of the Sub-Loan Group II-6 Mortgage
Loans.
(7) The Group II Subordinate REMIC III Regular Interests will bear interest
at a variable rate equal to the weighted average of the Net Rate of the
Mortgage Loans in each Mortgage Loan Group weighted in proportion to the
results of subtracting from the aggregate principal balance of each
Mortgage Loan Group, the Certificate Principal Balance of the related
Classes of Senior REMIC III Regular Interests.
(8) Component III of the Class R Certificates will not bear interest.
(iv) As provided herein, the REMIC Administrator will make an
election to treat the segregated pool of assets consisting of the REMIC II
Regular Interests and the REMIC III Regular Interests and any proceeds
thereof as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as "REMIC IV." Component IV of the Class R
Certificates will represent the sole Class of "residual interests" in
REMIC IV for purposes of the REMIC Provisions under federal income tax law.
The following table irrevocably sets forth the designation, Uncertificated
Pass-Through Rate (which is also the Pass-Through Rate for the Related
Certificates) and initial Uncertificated Principal Balance for each of the
"regular interests" in REMIC IV, and the designation and Certificate
Principal Balance of the Class R Certificates allocable to Component IV of
the Class R Certificates.
Initial
Class Designation Uncertificated
for each REMIC IV Type of Principal Uncertificated
Interest Interest Balance Pass-Through Rate
----------------- -------- -------------- -----------------
I-1A-1 Regular $625,811,000 (1)
I-1A-2 Regular $77,837,000 (1)
II-1A-1 Regular $216,271,300 (2)
II-1A-2 Regular $18,933,000 (2)
II-2A-1 Regular $428,206,400 (3)
II-3A-1 Regular $151,019,300 (4)
II-3A-2 Regular $13,221,000 (4)
II-4A-1 Regular $203,552,700 (5)
II-5A-1 Regular $145,057,100 (6)
II-5A-2 Regular $27,835,000 (6)
II-6A-1 Regular $370,307,200 (7)
II-6A-2 Regular $16,728,000 (7)
II-M-1 Regular $30,945,800 (9)
II-M-2 Regular $14,613,300 (9)
II-M-3 Regular $11,174,900 (9)
II-M-4 Regular $7,736,400 (9)
II-M-5 Regular $10,315,300 (9)
II-B-1 Regular $6,017,200 (9)
II-B-2 Regular $6,017,300 (9)
II-B-3 Regular $6,876,800 (9)
II-B-4 Regular $15,472,900 (9)
II-B-5 Regular $11,174,800 (9)
II-B-6 Regular $7,736,848 (9)
I-M-1 Regular $30,746,000 (9)
I-M-2 Regular $17,124,000 (9)
I-B-1 Regular $8,951,000 (10)
I-B-2 Regular $3,892,000 (10)
I-B-3 Regular $6,227,000 (10)
XP Regular $0 (11)
B-IO-I and B-IO-P Regular $3,891,850 (12)
Component IV of Residual $0 (13)
the Class R
Certificates
----------
(1) The Class I-1A-1 REMIC IV Regular Interests and the Class I-1A-2 REMIC
IV Regular Interests will bear interest at a variable rate equal to the
least of (i) One-Month LIBOR plus the related Margin, (ii) 11.50% and
(iii) the related Net Rate Cap.
(2) The Class II-1A-1 REMIC IV Regular Interests and the Class II-1A-2
REMIC IV Regular Interests will bear interest at a variable rate equal to
the weighted average of the Net Rates of the Sub-Loan Group II-1 Mortgage
Loans.
(3) The Class II-2A-1 REMIC IV Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the
Sub-Loan Group II-2 Mortgage Loans.
(4) The Class II-3A-1 REMIC IV Regular Interests and the Class II-3A-2
REMIC IV Regular Interests will bear interest at a variable rate equal to
the weighted average of the Net Rates of the Sub-Loan Group II-3 Mortgage
Loans.
(5) The Class II-4A-1 REMIC IV Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the
Sub-Loan Group II-4 Mortgage Loans.
(6) The Class II-5A-1 REMIC IV Regular Interests and the Class II-5A-2
REMIC IV Regular Interests will bear interest at a variable rate equal to
the weighted average of the Net Rates of the Sub-Loan Group II-5 Mortgage
Loans.
(7) The Class II-6A-1 REMIC IV Regular Interests and the Class II-6A-2
REMIC IV Regular Interests will bear interest at a variable rate equal to
the weighted average of the Net Rates of the Sub-Loan Group II-6 Mortgage
Loans.
(8) The Group II Subordinate REMIC IV Regular Interests will bear interest
at a variable rate equal to the weighted average of the Net Rate of the
Mortgage Loans in each Mortgage Loan Group weighted in proportion to the
results of subtracting from the aggregate principal balance of each
Mortgage Loan Group, the Certificate Principal Balance of the related
Classes of Senior Certificates. For federal income tax purposes, the
interest rate on the Group II Subordinate REMIC IV Regular Interests is
equal to the interest rate on REMIC III Regular Interest bearing the same
alphanumeric class designation.
(9) The Class I-M-1 REMIC IV Regular Interests and the Class I-M-2 REMIC IV
Regular Interests will bear interest at a rate equal to the least of (i)
One-Month LIBOR plus the related Margin, (ii) 11.50% and (iii) the related
Net Rate Cap.
(10) The Class I-B-1 REMIC IV Regular Interests, the Class I-B-2 REMIC IV
Regular Interests and the Class I-B-3 REMIC IV Regular Interests will bear
interest at a rate equal to the least of (i) One-Month LIBOR plus the
related Margin, (ii) 11.50% and (iii) the related Net Rate Cap.
(11) The Class XP Certificates will not bear any interest. The Class XP
Certificates will be entitled to receive Prepayment Charges collected with
respect to the Prepayment Charge Loans. The Class XP Certificates will
not represent an interest in any REMIC, they will instead represent an
interest in the Trust constituted by this Agreement that is a strip of
Prepayment Charges associated with the Prepayment Charge Loans.
(12) The Class B-IO Certificates will bear interest at a per annum rate
equal to the Class B-IO Pass-Through Rate on its Notional Amount. Amounts
paid, or deemed paid, to the Class B-IO Certificates shall be deemed to
first be paid to the REMIC IV Regular Interest B-IO-I in reduction of
accrued and unpaid interest thereon until such accrued and unpaid interest
shall have been reduced to zero and shall then be deemed paid to the REMIC
IV Regular Interest B-IO-P in reduction of the principal balance thereof.
(13) Component IV of the Class R Certificates will not bear interest.
(v) As provided herein, the REMIC Administrator will make an
election to treat the segregated pool of assets consisting of REMIC IV
Regular Interests B-IO-I and B-IO-P and any proceeds thereof as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC V." The Class R-X Certificates will represent the sole
Class of "residual interests" in REMIC V for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, Uncertificated Pass-Through Rate and initial Uncertificated
Principal Balance for the single "regular interest" in REMIC V and the
designation and Certificate Principal Balance of the Class R-X Certificates.
Initial
Class Designation Uncertificated
for each REMIC V Type of Principal Uncertificated
Interest Interest Balance Pass-Through Rate
---------------- -------- -------------- -----------------
B-IO Regular $3,891,850 (1)
Class R-X Residual (2)
Certificates $0
(1) The Class B-IO Certificates will bear interest at a per annum rate
equal to the Class B-IO Pass-Through Rate on its Notional Amount. The
REMIC V Regular Interest will not have an Uncertificated Pass-Through
Rate, but will be entitled to 100% of all amounts distributed or deemed
distributed on the REMIC IV Regular Interests B-IO-I and B-IO-P.
(2) The Class R-X Certificates will not bear interest.
(d) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date in the Trust Fund has
been designated as the "latest possible maturity date" for the REMIC I
Regular Interests, REMIC II Regular Interests, REMIC III Regular Interests,
REMIC IV Regular Interests, REMIC V Regular Interest and the Certificates.
(e) With respect to each Distribution Date, each Class of Certificates shall
accrue interest during the related Interest Accrual Period. With respect to
each Distribution Date and each such Class of Certificates (other than the
Residual Certificates or the Class B-IO Certificates), interest shall be
calculated, on the basis of a 360-day year and the actual number of days
elapsed in the related Interest Accrual Period, based upon the respective
Pass-Through Rate set forth, or determined as provided, above and the
Certificate Principal Balance of such Class applicable to such Distribution
Date. With respect to each Distribution Date and the Class B-IO Certificates,
interest shall be calculated, on the basis of a 360-day year consisting of
twelve 30-day months, based upon the Pass-Through Rate set forth, or
determined as provided, above and the Notional Amount of such Class
applicable to such Distribution Date.
(f) The Certificates shall be substantially in the forms set forth in
Exhibits X-0, X-0, X-0, X-0, X-0-0, X-0-0, X-0, X-0, X-0, X-0, X-00 and
A-11. On original issuance, the Securities Administrator shall sign,
countersign and shall deliver them at the direction of the Depositor.
Pending the preparation of definitive Certificates of any Class, the
Securities Administrator may sign and countersign temporary Certificates that
are printed, lithographed or typewritten, in authorized denominations for
Certificates of such Class, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers or
authorized signatories executing such Certificates may determine, as
evidenced by their execution of such Certificates. If temporary Certificates
are issued, the Depositor will cause definitive Certificates to be prepared
without unreasonable delay. After the preparation of definitive
Certificates, the temporary Certificates shall be exchangeable for definitive
Certificates upon surrender of the temporary Certificates at the office of
the Securities Administrator, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Certificates, the Securities
Administrator shall sign and countersign and deliver in exchange therefor a
like aggregate principal amount, in authorized denominations for such Class,
of definitive Certificates of the same Class. Until so exchanged, such
temporary Certificates shall in all respects be entitled to the same benefits
as definitive Certificates.
(g) Each Class of Book-Entry Certificates will be registered as a single
Certificate of such Class held by a nominee of the Depository or the DTC
Custodian, and beneficial interests will be held by investors through the
book-entry facilities of the Depository in minimum denominations of (i) in
the case of the Senior Certificates, $100,000 and in each case increments of
$1.00 in excess thereof, and (ii) in the case of the Offered Subordinate
Certificates, $100,000 and increments of $1.00 in excess thereof, except that
one Certificate of each such Class may be issued in a different amount so
that the sum of the denominations of all outstanding Certificates of such
Class shall equal the Certificate Principal Balance of such Class on the
Closing Date. On the Closing Date, the Securities Administrator shall
execute and countersign Physical Certificates all in an aggregate principal
amount that shall equal the Certificate Principal Balance of such Class on
the Closing Date. The Group II Non-offered Subordinate Certificates shall be
issued in certificated fully-registered form in minimum dollar denominations
of $100,000 and integral multiples of $1.00 in excess thereof, except that
one Group II Non-offered Subordinate Certificate of each Class may be issued
in a different amount so that the sum of the denominations of all outstanding
Private Certificates of such Class shall equal the Certificate Principal
Balance of such Class on the Closing Date. The Class R Certificates shall
each be issued in certificated fully-registered form in the denomination of
$100. The Class R-X Certificates shall each be issued in certificated
fully-registered form with no denomination. Each Class of Global
Certificates, if any, shall be issued in fully registered form in minimum
dollar denominations of $100,000 and integral multiples of $1.00 in excess
thereof, except that one Certificate of each Class may be in a different
denomination so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Certificate Principal Balance of
such Class on the Closing Date. On the Closing Date, the Securities
Administrator shall execute and countersign (i) in the case of each Class of
Offered Certificates, the Certificate in the entire Certificate Principal
Balance of the respective Class and (ii) in the case of each Class of Private
Certificates, Individual Certificates all in an aggregate principal amount
that shall equal the Certificate Principal Balance of each such respective
Class on the Closing Date. The Certificates referred to in clause (i) and if
at any time there are to be Global Certificates, the Global Certificates
shall be delivered by the Depositor to the Depository or pursuant to the
Depository's instructions, shall be delivered by the Depositor on behalf of
the Depository to and deposited with the DTC Custodian. The Securities
Administrator shall sign the Certificates by facsimile or manual signature
and countersign them by manual signature on behalf of the Securities
Administrator by one or more authorized signatories, each of whom shall be
Responsible Officers of the Securities Administrator or its agent. A
Certificate bearing the manual and facsimile signatures of individuals who
were the authorized signatories of the Securities Administrator or its agent
at the time of issuance shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to hold such
positions prior to the delivery of such Certificate.
(h) No Certificate shall be entitled to any benefit under this Agreement, or
be valid for any purpose, unless there appears on such Certificate the
manually executed countersignature of the Securities Administrator or its
agent, and such countersignature upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly executed
and delivered hereunder. All Certificates issued on the Closing Date shall
be dated the Closing Date. All Certificates issued thereafter shall be dated
the date of their countersignature.
(i) The Closing Date is hereby designated as the "startup" day of each 2005-9
REMIC within the meaning of Section 860G(a)(9) of the Code.
(j) For federal income tax purposes, each 2005-9 REMIC shall have a tax year
that is a calendar year and shall report income on an accrual basis.
(k) The Trustee on behalf of the Trust shall cause each 2005-9 REMIC to
timely elect to be treated as a REMIC under Section 860D of the Code. Any
inconsistencies or ambiguities in this Agreement or in the administration of
any Trust established hereby shall be resolved in a manner that preserves the
validity of such elections.
(l) The following legend shall be placed on the Residual Certificates,
whether upon original issuance or upon issuance of any other Certificate of
any such Class in exchange therefor or upon transfer thereof:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO
THE MASTER SERVICER AND THE SECURITIES ADMINISTRATOR THAT (1) SUCH
TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY
OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN
INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE
SUBJECT TO TAX AND EXCEPT FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER
THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE
CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE
COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN
ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH
PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E)
BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (F) AN
AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER
IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH
TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE
FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN
AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED
TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
Section 5.02 Registration of Transfer and Exchange of Certificates. (a) The
Securities Administrator shall maintain at its Corporate Trust Office a
Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Securities Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates
as herein provided.
(b) Subject to Section 5.01(a) and, in the case of any Global Certificate or
Physical Certificate upon the satisfaction of the conditions set forth below,
upon surrender for registration of transfer of any Certificate at any office
or agency of the Securities Administrator maintained for such purpose, the
Securities Administrator shall sign, countersign and shall deliver, in the
name of the designated transferee or transferees, a new Certificate of a like
Class and aggregate Fractional Undivided Interest, but bearing a different
number.
(c) By acceptance of a Private Certificate or a Residual Certificate, whether
upon original issuance or subsequent transfer, each holder of such
Certificate acknowledges the restrictions on the transfer of such Certificate
set forth in the Securities Legend and agrees that it will transfer such a
Certificate only as provided herein. In addition to the provisions of
Section 5.02(h), the following restrictions shall apply with respect to the
transfer and registration of transfer of an Private Certificate or a Residual
Certificate to a transferee that takes delivery in the form of an Individual
Certificate:
(i) The Securities Administrator shall register the transfer of an Individual
Certificate if the requested transfer is being made to a transferee who has
provided the Securities Administrator with a Rule 144A Certificate or
comparable evidence as to its QIB status.
(ii) The Securities Administrator shall register the transfer of any
Individual Certificate if (x) the transferor has advised the Securities
Administrator in writing that the Certificate is being transferred to an
Institutional Accredited Investor along with facts surrounding the transfer
as set forth in Exhibit F-3 hereto; and (y) prior to the transfer the
transferee furnishes to the Securities Administrator an Investment Letter
(and the Securities Administrator shall be fully protected in so doing),
provided that, if based upon an Opinion of Counsel addressed to the
Securities Administrator to the effect that the delivery of (x) and (y) above
are not sufficient to confirm that the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and other applicable laws,
the Securities Administrator shall as a condition of the registration of any
such transfer require the transferor to furnish such other certifications,
legal opinions or other information prior to registering the transfer of an
Individual Certificate as shall be set forth in such Opinion of Counsel.
(d) So long as a Global Certificate of such Class is outstanding and is held
by or on behalf of the Depository, transfers of beneficial interests in such
Global Certificate, or transfers by holders of Individual Certificates of
such Class to transferees that take delivery in the form of beneficial
interests in the Global Certificate, may be made only in accordance with
Section 5.02(h), the rules of the Depository and the following:
(i) In the case of a beneficial interest in the Global Certificate being
transferred to an Institutional Accredited Investor, such transferee shall be
required to take delivery in the form of an Individual Certificate or
Certificates and the Securities Administrator shall register such transfer
only upon compliance with the provisions of Section 5.02(c)(ii).
(ii) In the case of a beneficial interest in a Class of Global Certificates
being transferred to a transferee that takes delivery in the form of an
Individual Certificate or Certificates of such Class, except as set forth in
clause (i) above, the Securities Administrator shall register such transfer
only upon compliance with the provisions of Section 5.02(c)(i).
(iii) In the case of an Individual Certificate of a Class being transferred
to a transferee that takes delivery in the form of a beneficial interest in a
Global Certificate of such Class, the Securities Administrator shall register
such transfer if the transferee has provided the Securities Administrator
with a Rule 144A Certificate or comparable evidence as to its QIB status.
(iv) No restrictions shall apply with respect to the transfer or registration
of transfer of a beneficial interest in the Global Certificate of a Class to
a transferee that takes delivery in the form of a beneficial interest in the
Global Certificate of such Class; provided that each such transferee shall be
deemed to have made such representations and warranties contained in the Rule
144A Certificate as are sufficient to establish that it is a QIB.
(e) Subject to Section 5.02(h), an exchange of a beneficial interest in a
Global Certificate of a Class for an Individual Certificate or Certificates
of such Class, an exchange of an Individual Certificate or Certificates of a
Class for a beneficial interest in the Global Certificate of such Class and
an exchange of an Individual Certificate or Certificates of a Class for
another Individual Certificate or Certificates of such Class (in each case,
whether or not such exchange is made in anticipation of subsequent transfer,
and, in the case of the Global Certificate of such Class, so long as such
Certificate is outstanding and is held by or on behalf of the Depository) may
be made only in accordance with Section 5.02(h), the rules of the Depository
and the following:
(i) A holder of a beneficial interest in a Global Certificate of a Class may
at any time exchange such beneficial interest for an Individual Certificate
or Certificates of such Class.
(ii) A holder of an Individual Certificate or Certificates of a Class may
exchange such Certificate or Certificates for a beneficial interest in the
Global Certificate of such Class if such holder furnishes to the Securities
Administrator a Rule 144A Certificate or comparable evidence as to its QIB
status.
(iii) A holder of an Individual Certificate of a Class may exchange such
Certificate for an equal aggregate principal amount of Individual
Certificates of such Class in different authorized denominations without any
certification.
(f) (i) Upon acceptance for exchange or transfer of an Individual
Certificate of a Class for a beneficial interest in a Global Certificate of
such Class as provided herein, the Securities Administrator shall cancel such
Individual Certificate and shall (or shall request the Depository to) endorse
on the schedule affixed to the applicable Global Certificate (or on a
continuation of such schedule affixed to the Global Certificate and made a
part thereof) or otherwise make in its books and records an appropriate
notation evidencing the date of such exchange or transfer and an increase in
the certificate balance of the Global Certificate equal to the certificate
balance of such Individual Certificate exchanged or transferred therefor.
(ii) Upon acceptance for exchange or transfer of a beneficial interest in a
Global Certificate of a Class for an Individual Certificate of such Class as
provided herein, the Securities Administrator shall (or shall request the
Depository to) endorse on the schedule affixed to such Global Certificate (or
on a continuation of such schedule affixed to such Global Certificate and
made a part thereof) or otherwise make in its books and records an
appropriate notation evidencing the date of such exchange or transfer and a
decrease in the certificate balance of such Global Certificate equal to the
certificate balance of such Individual Certificate issued in exchange
therefor or upon transfer thereof.
(g) The Securities Legend shall be placed on any Individual Certificate
issued in exchange for or upon transfer of another Individual Certificate or
of a beneficial interest in a Global Certificate.
(h) Subject to the restrictions on transfer and exchange set forth in this
Section 5.02, the holder of any Individual Certificate may transfer or
exchange the same in whole or in part (in an initial certificate balance
equal to the minimum authorized denomination set forth in Section 5.01(g) or
any integral multiple of $1.00 in excess thereof) by surrendering such
Certificate at the Corporate Trust Office of the Securities Administrator, or
at the office of any transfer agent, together with an executed instrument of
assignment and transfer satisfactory in form and substance to the Securities
Administrator in the case of transfer and a written request for exchange in
the case of exchange. The holder of a beneficial interest in a Global
Certificate may, subject to the rules and procedures of the Depository, cause
the Depository (or its nominee) to notify the Securities Administrator in
writing of a request for transfer or exchange of such beneficial interest for
an Individual Certificate or Certificates. Following a proper request for
transfer or exchange, the Securities Administrator shall, within five
Business Days of such request made at the Corporate Trust Office of the
Securities Administrator, sign, countersign and deliver at the Corporate
Trust Office of the Securities Administrator, to the transferee (in the case
of transfer) or holder (in the case of exchange) or send by first class mail
at the risk of the transferee (in the case of transfer) or holder (in the
case of exchange) to such address as the transferee or holder, as applicable,
may request, an Individual Certificate or Certificates, as the case may
require, for a like aggregate Fractional Undivided Interest and in such
authorized denomination or denominations as may be requested. The
presentation for transfer or exchange of any Individual Certificate shall not
be valid unless made at the Corporate Trust Office of the Securities
Administrator by the registered holder in person, or by a duly authorized
attorney-in-fact.
(i) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized denominations of a like Class and
aggregate Fractional Undivided Interest, upon surrender of the Certificates
to be exchanged at the Corporate Trust Office of the Securities
Administrator; provided, however, that no Certificate may be exchanged for
new Certificates unless the original Fractional Undivided Interest
represented by each such new Certificate (i) is at least equal to the minimum
authorized denomination or (ii) is acceptable to the Depositor as indicated
to the Securities Administrator in writing. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall sign and
countersign and the Securities Administrator shall deliver the Certificates
which the Certificateholder making the exchange is entitled to receive.
(j) If the Securities Administrator so requires, every Certificate presented
or surrendered for transfer or exchange shall be duly endorsed by, or be
accompanied by a written instrument of transfer, with a signature guarantee,
in form satisfactory to the Securities Administrator, duly executed by the
holder thereof or his or her attorney duly authorized in writing.
(k) No service charge shall be made for any transfer or exchange of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(l) The Securities Administrator shall cancel all Certificates surrendered
for transfer or exchange but shall retain such Certificates in accordance
with its standard retention policy or for such further time as is required by
the record retention requirements of the Securities Exchange Act of 1934, as
amended, and thereafter may destroy such Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. (a) If
(i) any mutilated Certificate is surrendered to the Securities Administrator,
or the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Securities Administrator such security or indemnity as it may require to
save it harmless, and (iii) the Securities Administrator has not received
notice that such Certificate has been acquired by a third Person, the
Securities Administrator shall sign, countersign and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like tenor and Fractional Undivided Interest but in each
case bearing a different number. The mutilated, destroyed, lost or stolen
Certificate shall thereupon be canceled of record by the Securities
Administrator and shall be of no further effect and evidence no rights.
(b) Upon the issuance of any new Certificate under this Section 5.03, the
Securities 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 Securities
Administrator) connected therewith. Any duplicate Certificate issued
pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or
not the lost, stolen or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Securities
Administrator and any agent of the Depositor or the Securities Administrator
may treat the Person in whose name any Certificate is registered as the owner
of such Certificate for the purpose of receiving distributions pursuant to
Section 6.01 and for all other purposes whatsoever. Neither the Depositor,
the Securities Administrator nor any agent of the Depositor or the Securities
Administrator shall be affected by notice to the contrary. No Certificate
shall be deemed duly presented for a transfer effective on any Record Date
unless the Certificate to be transferred is presented no later than the close
of business on the third Business Day preceding such Record Date.
Section 5.05 Transfer Restrictions on Residual Certificates. (a) Residual
Certificates, or interests therein, may not be transferred without the prior
express written consent of the Tax Matters Person and the Seller, which
cannot be unreasonably withheld. As a prerequisite to such consent, the
proposed transferee must provide the Tax Matters Person, the Seller and the
Securities Administrator with an affidavit that the proposed transferee is a
Permitted Transferee (and an affidavit that it is a U.S. Person, unless, in
the case of a Class R Certificate only, the Tax Matters Person and the Seller
consent to the transfer to a person who is not a U.S. Person) as provided in
Section 5.05(b).
(b) No transfer, sale or other disposition of a Residual Certificate
(including a beneficial interest therein) may be made unless, prior to the
transfer, sale or other disposition of a Residual Certificate, the proposed
transferee (including the initial purchasers thereof) delivers to the Tax
Matters Person, the Securities Administrator and the Depositor an affidavit
in the form attached hereto as Exhibit E stating, among other things, that as
of the date of such transfer (i) such transferee is a Permitted Transferee
and that (ii) such transferee is not acquiring such Residual Certificate for
the account of any person who is not a Permitted Transferee. The Tax Matters
Person shall not consent to a transfer of a Residual Certificate if it has
actual knowledge that any statement made in the affidavit issued pursuant to
the preceding sentence is not true. Notwithstanding any transfer, sale or
other disposition of a Residual Certificate to any Person who is not a
Permitted Transferee, such transfer, sale or other disposition shall be
deemed to be of no legal force or effect whatsoever and such Person shall not
be deemed to be a Holder of a Residual Certificate for any purpose hereunder,
including, but not limited to, the receipt of distributions thereon. If any
purported transfer shall be in violation of the provisions of this Section
5.05(b), then the prior Holder thereof shall, upon discovery that the
transfer of such Residual Certificate was not in fact permitted by this
Section 5.05(b), be restored to all rights as a Holder thereof retroactive
to the date of the purported transfer. None of the Securities Administrator,
the Tax Matters Person or the Depositor shall be under any liability to any
Person for any registration or transfer of a Residual Certificate that is not
permitted by this Section 5.05(b) or for making payments due on such
Residual Certificate to the purported Holder thereof or taking any other
action with respect to such purported Holder under the provisions of this
Agreement so long as the written affidavit referred to above was received
with respect to such transfer, and the Tax Matters Person, the Securities
Administrator and the Depositor, as applicable, had no knowledge that it was
untrue. The prior Holder shall be entitled to recover from any purported
Holder of a Residual Certificate that was in fact not a permitted transferee
under this Section 5.05(b) at the time it became a Holder all payments made
on such Residual Certificate. Each Holder of a Residual Certificate, by
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this Section 5.05(b) and to any amendment of this Agreement
deemed necessary (whether as a result of new legislation or otherwise) by
counsel of the Tax Matters Person or the Depositor to ensure that the
Residual Certificates are not transferred to any Person who is not a
Permitted Transferee and that any transfer of such Residual Certificates will
not cause the imposition of a tax upon the Trust or cause any REMIC to fail
to qualify as a REMIC.
(c) The Class R-X Certificates (including a beneficial interest therein) and,
unless the Tax Matters Person shall have consented in writing (which consent
may be withheld in the Tax Matters Person's sole discretion), the Class R
Certificates (including a beneficial interest therein), may not be purchased
by or transferred to any person who is not a United States Person.
(d) By accepting a Residual Certificate, the purchaser thereof agrees to be a
Tax Matters Person if it is the Holder of the largest percentage interest of
such Certificate, and appoints the Securities Administrator to act as its
agent with respect to all matters concerning the tax obligations of the Trust.
Section 5.06 Restrictions on Transferability of Certificates. (a) No offer,
sale, transfer or other disposition (including pledge) of any Certificate
shall be made by any Holder thereof unless registered under the Securities
Act, or an exemption from the registration requirements of the Securities Act
and any applicable state securities or "Blue Sky" laws is available and the
prospective transferee (other than the Depositor) of such Certificate signs
and delivers to the Securities Administrator an Investment Letter, if the
transferee is an Institutional Accredited Investor, in the form set forth as
Exhibit F-l hereto, or a Rule 144A Certificate, if the transferee is a QIB,
in the form set forth as Exhibit F-2 hereto. Notwithstanding the provisions
of the immediately preceding sentence, no restrictions shall apply with
respect to the transfer or registration of transfer of a beneficial interest
in any Certificate that is a Global Certificate of a Class to a transferee
that takes delivery in the form of a beneficial interest in the Global
Certificate of such Class provided that each such transferee shall be deemed
to have made such representations and warranties contained in the Rule 144A
Certificate as are sufficient to establish that it is a QIB. In the case of
a proposed transfer of any Certificate to a transferee other than a QIB, the
Securities Administrator may require an Opinion of Counsel addressed to the
Securities Administrator that such transaction is exempt from the
registration requirements of the Securities Act. The cost of such opinion
shall not be an expense of the Securities Administrator or the Trust Fund.
(b) The Private Certificates shall each bear a Securities Legend.
Section 5.07 ERISA Restrictions. (a) Subject to the provisions of subsection
(b), no Residual Certificates or Private Certificates may be acquired
directly or indirectly by, or on behalf of, an employee benefit plan or other
retirement arrangement (a "Plan") that is subject to Title I of ERISA or
Section 4975 of the Code, or by a person using "plan assets" of a Plan,
unless the proposed transferee provides the Securities Administrator, with an
Opinion of Counsel addressed to the Master Servicer and the Securities
Administrator (upon which they may rely) that is satisfactory to the
Securities Administrator, which opinion will not be at the expense of the
Master Servicer or the Securities Administrator, that the purchase of such
Certificates by or on behalf of such Plan is permissible under applicable
law, will not constitute or result in a nonexempt prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Depositor,
the Master Servicer or the Securities Administrator to any obligation in
addition to those undertaken in the Agreement.
(b) Unless such Person has provided an Opinion of Counsel in accordance with
Section 5.07(a), any Person acquiring an interest in a Global Certificate
which is a Private Certificate, by acquisition of such Certificate, shall be
deemed to have represented to the Securities Administrator, and any Person
acquiring an interest in a Private Certificate in definitive form shall
represent in writing to the Securities Administrator, that it is not
acquiring an interest in such Certificate directly or indirectly by, or on
behalf of, or with "plan assets" of, an employee benefit plan or other
retirement arrangement which is subject to Title I of ERISA and/or
Section 4975 of the Code.
(c) Each beneficial owner of a Class I-M-1, Class I-M-2, Class I-B-1,
Class I-B-2, Class II-B-1, Class II-B-2 or Class II-B-3 Certificate or any
interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of that certificate or any interest therein shall be
deemed to have represented, by virtue of its acquisition or holding of that
certificate or interest therein, that either (i) such Certificate is rated at
least "BBB-" or its equivalent by Fitch, S&P or Xxxxx'x, (ii) such beneficial
owner is not a Plan or investing with "plan assets" of any Plan, or (iii) (1)
it is an insurance company, (2) the source of funds used to acquire or hold
the certificate or interest therein is an "insurance company general
account," as such term is defined in Prohibited Transaction Class Exemption
("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60
have been satisfied.
(d) Neither the Master Servicer nor the Securities Administrator will be
required to monitor, determine or inquire as to compliance with the transfer
restrictions with respect to the Global Certificates. Any attempted or
purported transfer of any Certificate in violation of the provisions of
Sections (a), (b) or (c) above shall be void ab initio and such Certificate
shall be considered to have been held continuously by the prior permitted
Certificateholder. Any transferor of any Certificate in violation of such
provisions, shall indemnify and hold harmless the Securities Administrator
and the Master Servicer from and against any and all liabilities, claims,
costs or expenses incurred by the Securities Administrator or the Master
Servicer as a result of such attempted or purported transfer. The Securities
Administrator shall have no liability for transfer of any such Global
Certificates in or through book-entry facilities of any Depository or between
or among Depository Participants or Certificate Owners made in violation of
the transfer restrictions set forth herein.
Section 5.08 Rule 144A Information. For so long as any Private Certificates
are outstanding, (1) the Seller will provide or cause to be provided to any
holder of such Private Certificates and any prospective purchaser thereof
designated by such a holder, upon the request of such holder or prospective
purchaser, the information required to be provided to such holder or
prospective purchaser by Rule 144A(d)(4) under the Securities Act; and (2)
the Seller shall update such information from time to time in order to
prevent such information from becoming false and misleading and will take
such other actions as are necessary to ensure that the safe harbor exemption
from the registration requirements of the Securities Act under Rule 144A is
and will be available for resales of such Private Certificates conducted in
accordance with Rule 144A.
ARTICLE VI
Payments to Certificateholders
Section 6.01.1 Distributions on the Group I Certificates. (a)On each
Distribution Date, with respect to Loan Group I, an amount equal to the
Interest Funds and Principal Funds for such Distribution Date shall be
withdrawn by the Securities Administrator from the Distribution Account and
the Pre-Funding Reserve Account in respect of Loan Group I to the extent of
funds on deposit therein and distributed in the following order of priority:
First, Interest Funds will be distributed, in the following manner and
order of priority:
1. From Interest Funds, to the Class I-1A-1 Certificates and
Class I-1A-2 Certificates, the Current Interest and then any Interest
Carry Forward Amount for each such Class, pro rata, based on the
Current Interest and Interest Carry Forward Amount due each such Class;
2. From remaining Interest Funds, to the Class I-M-1, Class
I-M-2, Class I-B-1, Class I-B-2 and Class I-B-3 Certificates,
sequentially, in that order, the Current Interest for each such Class;
3. Any Excess Spread, to the extent necessary to cause the
Overcollateralization Amount to equal to the Overcollateralization
Target Amount, will be the Extra Principal Distribution Amount and will
be included as part of the Principal Distribution Amount and
distributed in accordance with second (A) and (B) below; and
4. Any Remaining Excess Spread will be applied, together with
the Overcollateralization Release Amount, as Excess Cashflow pursuant
to clauses Third through Thirteenth below.
On any Distribution Date, any shortfalls resulting from the application
of the Relief Act and any Prepayment Interest Shortfalls to the extent not
covered by Compensating Interest Payments will be allocated as set forth in
the definition of Current Interest herein.
Second, to pay as principal on the Certificates entitled to payments of
principal, in the following order of priority:
(A) For each Distribution Date (i) prior to the Stepdown Date or (ii)
on which a Trigger Event is in effect, from Principal Funds and the
Extra Principal Distribution Amount for such Distribution Date:
1. To the Class I-1A-1 Certificates and Class I-1A-2
Certificates, an amount equal to the Principal Distribution Amount will
be distributed pro rata between the Class I-1A-1 Certificates and the
Class I-1A-2 Certificates, in accordance with their respective
Certificate Principal Balances, until the Certificate Principal Balance
of each such Class is reduced to zero;
2. To the Class I-M-1 Certificates, any remaining Principal
Distribution Amount until the Certificate Principal Balance thereof is
reduced to zero;
3. To the Class I-M-2 Certificates, any remaining Principal
Distribution Amount until the Certificate Principal Balance thereof is
reduced to zero;
4. To the Class I-B-1 Certificates, any remaining Principal
Distribution Amount until the Certificate Principal Balance thereof is
reduced to zero;
5. To the Class I-B-2 Certificates, any remaining Principal
Distribution Amount until the Certificate Principal Balance thereof is
reduced to zero; and
6. To the Class I-B-3 Certificates, any remaining Principal
Distribution Amount until the Certificate Principal Balance thereof is
reduced to zero.
(B) For each Distribution Date on or after the Stepdown Date, so long
as a Trigger Event is not in effect, from Principal Funds and the Extra
Principal Distribution Amount for such Distribution Date:
1. To the Class I-1A-1 Certificates and Class I-1A-2
Certificates, from the Principal Distribution Amount, an amount equal
to the Class I-A Principal Distribution Amount will be distributed pro
rata between the Class I-1A-1 Certificates and the Class I-1A-2
Certificates in accordance with their respective Certificate Principal
Balances until the Certificate Principal Balance of each such Class is
reduced to zero;
2. To the Class I-M-1 Certificates, from any remaining
Principal Distribution Amount, the Class I-M-1 Principal Distribution
Amount, until the Certificate Principal Balance thereof is reduced to
zero;
3. To the Class I-M-2 Certificates, from any remaining
Principal Distribution Amount, the Class I-M-2 Principal Distribution
Amount, until the Certificate Principal Balance thereof is reduced to
zero;
4. To the Class I-B-1 Certificates, from any remaining
Principal Distribution Amount, the Class I-B-1 Principal Distribution
Amount, until the Certificate Principal Balance thereof is reduced to
zero;
5. To the Class I-B-2 Certificates, from any remaining
Principal Distribution Amount, the Class I-B-2 Principal Distribution
Amount, until the Certificate Principal Balance thereof is reduced to
zero; and
6. To the Class I-B-3 Certificates, from any remaining
Principal Distribution Amount, the Class I-B-3 Principal Distribution
Amount, until the Certificate Principal Balance thereof is reduced to
zero.
Third, from any remaining Excess Cashflow, the following amounts to
each Class of Class I-A Certificates, on a pro rata basis in accordance with
the respective amounts owed to each such Class: (a) any Interest Carry
Forward Amount to the extent not paid pursuant to clause First 1 above and
then (b) any Unpaid Realized Loss Amount, in each case for each such Class
for such Distribution Date;
Fourth, from any remaining Excess Cashflow, the following amounts to
the Class I-M-1 Certificates: (a) any Interest Carry Forward Amount and then
(b) any Unpaid Realized Loss Amount, in each case for such Class for such
Distribution Date;
Fifth, from any remaining Excess Cashflow, the following amounts to the
Class I-M-2 Certificates: (a) any Interest Carry Forward Amount and then (b)
any Unpaid Realized Loss Amount, in each case for such Class for such
Distribution Date;
Sixth, from any remaining Excess Cashflow, the following amounts to the
Class I-B-1 Certificates: (a) any Interest Carry Forward Amount and then (b)
any Unpaid Realized Loss Amount, in each case for such Class for such
Distribution Date;
Seventh, from any remaining Excess Cashflow, the following amounts to
the Class I-B-2 Certificates: (a) any Interest Carry Forward Amount and then
(b) any Unpaid Realized Loss Amount, in each case for such Class for such
Distribution Date;
Eighth, from any remaining Excess Cashflow, the following amounts to
the Class I-B-3 Certificates: (a) any Interest Carry Forward Amount and then
(b) any Unpaid Realized Loss Amount, in each case for such Class for such
Distribution Date;
Ninth, from any remaining Excess Cashflow, to each Class of Class I-A
Certificates, any Basis Risk Shortfall and any Basis Risk Shortfall
Carryforward Amount (remaining unpaid after payments are made under the
related Cap Contracts) for each such Class for such Distribution Date, pro
rata, based on the Basis Risk Shortfall and Basis Risk Shortfall Carry
Forward Amount owed to each such Class;
Tenth, from any remaining Excess Cashflow, to the Class I-M-1, Class
I-M-2, Class I-B-1, Class I-B-2 and Class I-B-3 Certificates, in that order,
any Basis Risk Shortfall and any Basis Risk Shortfall Carryforward Amount
(remaining unpaid after payments are made under the related Cap Contracts),
in each case for such Class for such Distribution Date;
Eleventh, from any remaining Excess Cashflow, to the Class B-IO
Certificates, the Class B-IO Distribution Amount for such Distribution Date;
Twelfth, from any remaining Excess Cashflow, to the Class B-IO
Certificates, any unreimbursed Class B-IO Advanced Amounts; and
Thirteenth, any remaining amounts to the Class R Certificates.
All payments of amounts in respect of Basis Risk Shortfall or Basis
Risk Shortfall Carryforward Amount made pursuant to the provisions of this
paragraph (a) shall, for federal income tax purposes, be deemed to have been
distributed from REMIC V to the holder of the Class B-IO Certificates, and
then paid outside of any 2005-9 REMIC to the recipients thereof pursuant to
an interest rate cap contract. By accepting their Certificates the holders
of the Certificates agree so to treat such payments for purposes of filing
their income tax returns.
(b) On each Distribution Date, the related Cap Contract Payment
Amount with respect to such Payment Date shall be distributed in the
following order of priority, in each case to the extent of amounts available:
(iv) first, to the holders of the related Class or Classes of Certificates,
the payment of any Basis Risk Shortfall or Basis Risk Shortfall Carry
Forward Amount for such Distribution Date to the extent not covered by
Excess Cashflow for such Distribution Date;
(v) second, from any remaining amounts, the payment of an amount equal to any
Current Interest and Interest Carry Forward Amount for the related
Class or Classes of Certificates to the extent not covered by Interest
Funds or Excess Cashflow on such Distribution Date;
(vi) third, from any remaining amounts, available from the Cap Contracts
relating to the Class I-A Certificates, to the Class I-M-1, Class
I-M-2, Class I-B-1, Class I-B-2 and Class I-B-3 Certificates, in that
order, to the extent not paid pursuant to clauses (i) or (ii) above; and
(vii) fourth, for deposit into the Cap Reserve Account, any remaining amount.
On each Distribution Date, amounts on deposit in the Cap Reserve
Account will be allocated first to the Class I-A Certificates, pro rata,
based on the current Realized Losses and any Unpaid Realized Loss Amount for
each such Class for such Distribution Date, and then to the Class I-M-1,
Class I-M-2, Class I-B-1, Class I-B-2 and Class I-B-3 Certificates, in that
order, to pay any current Realized Losses and any Unpaid Realized Loss
Amount, in each case, for such Class and for such Distribution Date to the
extent not covered by Excess Cashflow on such Distribution Date.
All Cap Contract Payment Amounts made with respect to Current Interest
and Interest Carry Forward Amounts will be treated, for federal income tax
purposes, as reimburseable advances ("Class B-IO Advances") made from the
holder of the Class B-IO Certificates. Such Class B-IO Advances will be paid
back to the holder of the Class B-IO Certificate pursuant to Section
6.01.1(a).
(c) On each Distribution Date, all amounts transferred from the Class
XP Reserve Account representing Prepayment Charges in respect of the
Prepayment Charge Loans received during the related Prepayment Period will be
withdrawn from the Distribution Account and distributed by the Securities
Administrator to the Holders of the Class XP Certificates and shall not be
available for distribution to the Holders of any other Class of Certificates.
(d) The expenses and fees of the Trust shall be paid by each of the
2005-9 REMICs, to the extent that such expenses relate to the assets of each
of such respective 2005-9 REMICs, and all other expenses and fees of the
Trust shall be paid pro rata by each of the 2005-9 REMICs.
Section 6.01.2 Distributions on the Group II Certificates. (a)
Interest and principal (as applicable) on the Group II Certificates of each
Certificate Group will be distributed by the Securities Administrator monthly
on each Distribution Date, commencing in October 2005, in an amount equal to
the Available Funds for the related Sub-Loan Group on deposit in the
Distribution Account and the Pre-Funding Reserve Account in respect of each
Sub-Loan Group in Loan Group II for such Distribution Date. On each
Distribution Date, the Available Funds for each Sub-Loan Group in Loan Group
II on deposit in the Distribution Account shall be distributed as follows:
(A) on each Distribution Date, the Available Funds for Sub-Loan Group II-1
will be distributed to the Class II-1A-1 Certificates and
the Class II-1A-2 Certificates as follows:
first, to the Class II-1A-1 Certificates and the
Class II-1A-2 Certificates, the Accrued Certificate
Interest on such Classes for such Distribution Date,
pro rata, based on the Accrued Certificate Interest
owed to each such Class;
second, to the Class II-1A-1 Certificates and the
Class II-1A-2 Certificates, any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates, pro rata, based on the
undistributed Accrued Certificate Interest owed to
each such Class, to the extent of remaining Available
Funds for Sub-Loan Group II-1; and
third, to the Class II-1A-1 Certificates and the
Class II-1A-2 Certificates, in reduction of the
Certificate Principal Balance of each such Class, the
Senior Optimal Principal Amount with respect to the
Sub-Loan Group II-1 Certificates for such
Distribution Date, pro rata, based on the Certificate
Principal Balance of each such Class, to the extent
of remaining Available Funds for Sub-Loan Group II-1,
until the Certificate Principal Balance of each such
Class has been reduced to zero.
(B) on each Distribution Date, the Available Funds for Sub-Loan Group II-2
will be distributed to the Class II-2A-1 Certificates as
follows:
first, to the Class II-2A-1 Certificates, the Accrued
Certificate Interest on such Class for such
Distribution Date;
second, to the Class II-2A-1 Certificates, any
Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates, to
the extent of remaining Available Funds for Sub-Loan
Group II-2; and
third, to the Class II-2A-1 Certificates, in
reduction of the Certificate Principal Balance
thereof, the Senior Optimal Principal Amount with
respect to the Sub-Loan Group II-2 Certificates for
such Distribution Date to the extent of remaining
Available Funds for Sub-Loan Group II-2, until the
Certificate Principal Balance of such Class has been
reduced to zero.
(C) on each Distribution Date, the Available Funds for Sub-Loan Group II-3
will be distributed to the Class II-3A-1 Certificates and
the Class II-3A-2 Certificates as follows:
first, to the Class II-3A-1 Certificates and the
Class II-3A-2 Certificates, the Accrued Certificate
Interest on such Classes for such Distribution Date,
pro rata, based on the Accrued Certificate Interest
owed to each such Class;
second, to the Class II-3A-1 Certificates and the
Class II-3A-2 Certificates, any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates, pro rata, based on the
undistributed Accrued Certificate Interest owed to
each such Class, to the extent of remaining Available
Funds for Sub-Loan Group II-3; and
third, to the Class II-3A-1 Certificates and the
Class II-3A-2 Certificates, in reduction of the
Certificate Principal Balance of each such Class, the
Senior Optimal Principal Amount with respect to the
Sub-Loan Group II-3 Certificates for such
Distribution Date, pro rata, based on the Certificate
Principal Balance of each such Class, to the extent
of remaining Available Funds for Sub-Loan Group II-3,
until the Certificate Principal Balance of each such
Class has been reduced to zero.
(D) on each Distribution Date, the Available Funds for Sub-Loan Group II-4
will be distributed to the Class II-4A-1 Certificates as
follows:
first, to the Class II-4A-1 Certificates, the Accrued
Certificate Interest on such Class for such
Distribution Date;
second, to the Class II-4A-1 Certificates, any
Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates, to
the extent of remaining Available Funds for Sub-Loan
Group II-4; and
third, to the Class II-4A-1 Certificates, in
reduction of the Certificate Principal Balance
thereof, the Senior Optimal Principal Amount with
respect to the Sub-Loan Group II-4 Certificates for
such Distribution Date to the extent of remaining
Available Funds for Sub-Loan Group II-4, until the
Certificate Principal Balance of such Class has been
reduced to zero.
(E) on each Distribution Date, the Available Funds for Sub-Loan Group II-5
will be distributed to the Class II-5A-1 Certificates and
the Class II-5A-2 Certificates as follows:
first, to the Class II-5A-1 Certificates and the
Class II-5A-2 Certificates, the Accrued Certificate
Interest on such Classes for such Distribution Date,
pro rata, based on the Accrued Certificate Interest
owed to each such Class;
second, to the Class II-5A-1 Certificates and the
Class II-5A-2 Certificates, any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates, pro rata, based on the
undistributed Accrued Certificate Interest owed to
each such Class, to the extent of remaining Available
Funds for Sub-Loan Group II-5; and
third, to the Class II-5A-1 Certificates and the
Class II-5A-2 Certificates, in reduction of the
Certificate Principal Balance of each such Class, the
Senior Optimal Principal Amount with respect to the
Sub-Loan Group II-5 Certificates for such
Distribution Date, pro rata, based on the Certificate
Principal Balance of each such Class, to the extent
of remaining Available Funds for Sub-Loan Group II-5,
until the Certificate Principal Balance of each such
Class has been reduced to zero.
(F) on each Distribution Date, the Available Funds for Sub-Loan Group II-6
will be distributed to the Class II-6A-1 Certificates and
the Class II-6A-2 Certificates as follows:
first, to the Class II-6A-1 Certificates and the
Class II-6A-2 Certificates, the Accrued Certificate
Interest on such Classes for such Distribution Date,
pro rata, based on the Accrued Certificate Interest
owed to each such Class;
second, to the Class II-6A-1 Certificates and the
Class II-6A-2 Certificates, any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates, pro rata, based on the
undistributed Accrued Certificate Interest owed to
each such Class, to the extent of remaining Available
Funds for Sub-Loan Group II-6; and
third, to the Class II-6A-1 Certificates and the
Class II-6A-2 Certificates, in reduction of the
Certificate Principal Balance of each such Class, the
Senior Optimal Principal Amount with respect to the
Sub-Loan Group II-6 Certificates for such
Distribution Date, pro rata, based on the Certificate
Principal Balance of each such Class, to the extent
of remaining Available Funds for Sub-Loan Group II-6,
until the Certificate Principal Balance of each such
Class has been reduced to zero.
(G) Except as provided in clauses (H) and (I) below, on
each Distribution Date on or prior to the Cross-Over Date,
an amount equal to the sum of any remaining Available Funds
for all Loan Groups in Loan Group II after the
distributions in clauses (A) through (F) above will be
distributed sequentially, in the following order, to the
Class II-M-1, Class II-M-2, Class II-M-3, Class II-M-4,
Class II-M-5, Class II-B-1, Class II-B-2, Class II-B-3,
Class II-B-4, Class II-B-5 and Class II-B-6 Certificates,
in each case up to an amount equal to and in the following
order: (a) the Accrued Certificate Interest thereon for
such Distribution Date, (b) any Accrued Certificate
Interest thereon remaining undistributed from previous
Distribution Dates and (c) such Class's Allocable Share for
such Distribution Date, in each case, to the extent of
remaining Available Funds for all Sub-Loan Groups in Loan
Group II.
(H) On each Distribution Date prior to the
Cross-Over Date, but after the reduction of the aggregate
Certificate Principal Balance of the Group II Senior
Certificates in any Certificate Group to zero, the
remaining Certificate Groups related to the Group II
Mortgage Loans will be entitled to receive in reduction of
their Certificate Principal Balances, pro rata based upon
aggregate Certificate Principal Balance of the Senior
Certificates in each Certificate Group related to the Group
II Mortgage Loans immediately prior to such Distribution
Date, in addition to any Principal Prepayments related to
such remaining Group II Senior Certificates' respective
Sub-Loan Group allocated to such Senior Certificates, 100%
of the Principal Prepayments on any Group II Mortgage Loan
in the Sub-Loan Group or Sub-Loan Groups relating to any
fully paid Certificate Group. Such amounts allocated to
Group II Senior Certificates shall be treated as part of
the Available Funds for the related Sub-Loan Group and
distributed as part of the related Senior Optimal
Distribution Amount in accordance with priority third in
clauses (A) through (F) above, as applicable, in reduction
of the Certificate Principal Balances thereof.
Notwithstanding the foregoing, if (i) the weighted average
of the Subordinate Percentages for each Sub-Loan Group in
Loan Group II on such Distribution Date equals or exceeds
two times the initial weighted average of the Subordinate
Percentages for each Sub-Loan Group in Loan Group II and
(ii) the aggregate Stated Principal Balance of the Group II
Mortgage Loans delinquent 60 days or more (including for
this purpose any such Mortgage Loans in foreclosure and
Group II Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust),
averaged over the last six months, as a percentage of the
aggregate Certificate Principal Balance of the Group II
Subordinate Certificates does not exceed 100%, then the
additional allocation of Principal Prepayments to the
Certificates in accordance with this clause will not be
made and 100% of the Principal Prepayments on any Group II
Mortgage Loan in the Sub-Loan Group relating to the fully
paid Certificate Group or Certificate Groups related to the
Group II Mortgage Loans will be allocated to the Group II
Subordinate Certificates.
(I) For any Undercollateralized Certificate Group on any
Distribution Date prior to the Cross-Over Date, (i) 100% of
amounts otherwise allocable to the Group II Subordinate
Certificates in respect of principal will be distributed to
the Group II Senior Certificates of such
Undercollateralized Certificate Group on a pro rata basis
in accordance with their respective Certificate Principal
Balances in reduction of the Certificate Principal Balances
thereof, until the aggregate Certificate Principal Balance
of such Group II Senior Certificates is an amount equal to
the aggregate Stated Principal Balance of the Group II
Mortgage Loans in the related Sub-Loan Group and (ii) the
Accrued Certificate Interest otherwise allocable to the
Group II Subordinate Certificates on such Distribution Date
will be reduced and distributed to such Group II Senior
Certificates, to the extent of any amount due and unpaid on
such Group II Senior Certificates, in an amount equal to
one month's interest at a rate equal to the related
Pass-Through Rate for such Distribution Date on the related
Undercollateralized Amount. Any such reduction in the
Accrued Certificate Interest on the Group II Subordinate
Certificates will be allocated in reverse order of their
respective numerical designations, commencing with the
Class II-B-6 Certificates. If there exists more than one
Undercollateralized Certificate Group on a Distribution
Date, amounts distributable to such Undercollateralized
Certificate Groups pursuant to this clause will be
allocated between such Undercollateralized Certificate
Groups, pro rata, based upon their respective
Undercollateralized Amounts.
(J) If, after distributions have been made pursuant to
priorities first and second of clauses (A) through (F)
above on any Distribution Date, the remaining Available
Funds for any Sub-Loan Group in Loan Group II is less than
the Senior Optimal Principal Amount for that Sub-Loan
Group, the Senior Optimal Principal Amount for such
Sub-Loan Group shall be reduced by that amount, and the
remaining Available Funds for such Sub-Loan Group will be
distributed as principal among the related Classes of Group
II Senior Certificates on a pro rata basis in accordance
with their respective Certificate Principal Balances.
(K) On each Distribution Date, any Available Funds
remaining after payment of interest and principal to the
Classes of Certificates entitled thereto, will be
distributed to the Class R Certificates; provided that if
on any Distribution Date there are any Available Funds for
any Sub-Loan Group in Loan Group II remaining after payment
of interest and principal to a Class or Classes of
Certificates entitled thereto, such amounts will be
distributed to the other Classes of Group II Senior
Certificates, pro rata, based upon their Certificate
Principal Balances, until all amounts due to all Classes of
Group II Senior Certificates have been paid in full, before
any Available Funds are distributed in accordance with this
clause to the Class R Certificates.
(b) No Accrued Certificate Interest will be payable with respect to any
Class of Certificates after the Distribution Date on which the Certificate
Principal Balance of such Certificate has been reduced to zero.
(c) If on any Distribution Date the Available Funds for the Group II Senior
Certificates in any Certificate Group is less than the Accrued Certificate
Interest on the related Senior Certificates for such Distribution Date prior
to reduction for Net Interest Shortfalls and the interest portion of Realized
Losses, the shortfall will be allocated to the holders of the Class of Senior
Certificates in such Certificate Group on a pro rata basis in accordance with
the amount of Accrued Certificate Interest for that Distribution Date absent
such shortfalls. In addition, the amount of any interest shortfalls will
constitute unpaid Accrued Certificate Interest and will be distributable to
holders of the Certificates of the related Classes entitled to such amounts
on subsequent Distribution Dates, to the extent of the applicable Available
Funds after current interest distributions as required herein. Any such
amounts so carried forward will not bear interest. Shortfalls in interest
payments will not be offset by a reduction in the servicing compensation of
the Master Servicer or otherwise, except to the extent of applicable
Compensating Interest Payments.
(d) The expenses and fees of the Trust shall be paid by each of the 2005-9
REMICs, to the extent that such expenses relate to the assets of each of such
respective 2005-9 REMICs, and all other expenses and fees of the Trust shall
be paid pro rata by each of the 2005-9 REMICs.
Section 6.02.1 Allocation of Losses and Subsequent Recoveries on the
Group I Certificates. (a) On or prior to each Determination Date, the
Master Servicer shall determine the amount of any Realized Loss in respect of
each Group I Mortgage Loan that occurred during the immediately preceding
calendar month, based on information provided by the related Servicer. Any
Realized Losses with respect to the Group I Mortgage Loans shall be applied
on each Distribution Date after the distributions provided for in Section
6.01, in reduction of the Certificate Principal Balance of the Class or
Classes of Group I Certificates to the extent provided in the definition of
Applied Realized Loss Amount.
(b) In addition, in the event that the Master Servicer receives any
Subsequent Recoveries from a Servicer, the Master Servicer shall deposit such
funds into the Master Servicer Collection Account pursuant to Section
4.01(c)(ii). If, after taking into account such Subsequent Recoveries, the
amount of a Realized Loss is reduced, the amount of such Subsequent
Recoveries will be applied to increase the Certificate Principal Balance of
the Class of Group I Subordinate Certificates with the highest payment
priority to which Applied Realized Loss Amounts have been allocated, but not
by more than the amount of Applied Realized Loss Amounts previously allocated
to that Class of Group I Subordinate Certificates. The amount of any
remaining Subsequent Recoveries will be applied to sequentially increase the
Certificate Principal Balance of the Group I Certificates, beginning with the
Class of Group I Certificates with the next highest payment priority, up to
the amount of such Applied Realized Loss Amounts previously allocated to such
Class or Classes of Group I Certificates. Notwithstanding the forgoing, any
Subsequent Recoveries will be allocated to the Group I Senior Certificates to
the extent of any Applied Realized Loss Amounts before being applied to the
Group I Subordinate Certificates. Holders of such Group I Certificates will
not be entitled to any payments in respect of Current Interest on the amount
of such increases for any Interest Accrual Period preceding the Distribution
Date on which such increase occurs. Any such increases shall be applied to
the Certificate Principal Balance of each Group I Certificate of such Class
in accordance with its respective Fractional Undivided Interest.
Section 6.02.2 Allocation of Losses and Subsequent Recoveries on the
Group II Certificates. (a) On or prior to each Determination Date, the
Master Servicer shall determine the amount of any Realized Loss in respect of
each Group II Mortgage Loan that occurred during the immediately preceding
calendar month, based on information provided by the related Servicer.
(b) With respect to any Group II Certificates on any Distribution
Date, the principal portion of each Realized Loss on a Group II Mortgage Loan
in a Sub-Loan Group shall be allocated as follows:
first, to the Class II-B-6 Certificates until the
Certificate Principal Balance thereof has been reduced to zero;
second, to the Class II-B-5 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
third, to the Class II-B-4 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
fourth, to the Class II-B-3 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
fifth, to the Class II-B-2 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
sixth, to the Class II-B-1 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
seventh to the Class II-M-5 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
eighth, to the Class II-M-4 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
ninth, to the Class II-M-3 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
tenth, to the Class II-M-2 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
eleventh, to the Class II-M-1 Certificates until the Certificate
Principal Balance thereof has been reduced to zero; and
twelfth, to the Senior Certificates in the related Certificate
Group until the Certificate Principal Balances thereof has been reduced
to zero in accordance with clause (d) below;
(c) Notwithstanding the foregoing clause (b), no such allocation of
any Realized Loss shall be made on a Distribution Date to any Class of (i)
Group II Subordinated Certificates to the extent that such allocation would
result in the reduction of the aggregate Certificate Principal Balances of
all Group II Certificates in as of such Distribution Date, after giving
effect to all distributions and prior allocations of Realized Losses on the
Group II Mortgage Loans on such date, to an amount less than the aggregate
Stated Principal Balance of all of the Group II Mortgage Loans as of the
first day of the month of such Distribution Date and (ii) Group II Senior
Certificates in a Certificate Group to the extent that such allocation would
result in the reduction of the aggregate Certificate Principal Balances of
all the Group II Senior Certificates in such Certificate Group as of such
Distribution Date, after giving effect to all distributions and prior
allocations of Realized Losses on the Group II Mortgage Loans in the related
Sub-Loan Group in Loan Group II on such date, to an amount less than the
aggregate Stated Principal Balance of all of the Group II Mortgage Loans in
such Sub-Loan Group as of the first day of the month of such Distribution
Date (each such limitation in clause (i) and (ii), the "Loss Allocation
Limitation").
(d) The principal portion of any Realized Losses allocated to a
Class of Certificates shall be allocated among the Certificates of such Class
in proportion to their respective Certificate Principal Balances. The
principal portion of any allocation of Realized Losses shall be accomplished
by reducing the Certificate Principal Balance of the related Group II
Certificates on the related Distribution Date. The principal portion of any
Realized Losses allocated to the Sub-Loan Group II-1 Certificates will be
allocated first to the Class II-1A-2 Certificates until the Certificate
Principal Balance thereof has been reduced to zero and then to the Class
II-1A-1 Certificates until the Certificate Principal Balance thereof has been
reduced to zero. The principal portion of any Realized Losses allocated to
the Sub-Loan Group II-3 Certificates will be allocated first to the Class
II-3A-2 Certificates until the Certificate Principal Balance thereof has been
reduced to zero and then to the Class II-3A-1 Certificates until the
Certificate Principal Balance thereof has been reduced to zero. The principal
portion of any Realized Losses allocated to the Sub-Loan Group II-5
Certificates will be allocated first to the Class II-5A-2 Certificates until
the Certificate Principal Balance thereof has been reduced to zero and then
to the Class II-5A-1 Certificates until the Certificate Principal Balance
thereof has been reduced to zero. The principal portion of any Realized
Losses allocated to the Sub-Loan Group II-6 Certificates will be allocated
first to the Class II-6A-2 Certificates until the Certificate Principal
Balance thereof has been reduced to zero and then to the Class II-6A-1
Certificates until the Certificate Principal Balance thereof has been reduced
to zero. Once the aggregate Certificate Principal Balance of the Certificates
in a Certificate Group been reduced to zero, the principal portion of
Realized Losses on the Mortgage Loans in the related Sub-Loan Group (if any)
that are not allocated to the Subordinate Certificates pursuant to Section
6.02.2(b) will be allocated pro rata based upon their respective Certificate
Principal Balances to the remaining Group II Senior Certificates of the other
Certificate Groups, pro rata based upon their respective Certificate
Principal Balances.
(e) Realized Losses shall be allocated on the Distribution Date in the month
following the month in which such loss was incurred and, in the case of the
principal portion thereof, after giving effect to distributions made on such
Distribution Date.
(f) On each Distribution Date, the Securities Administrator shall determine
the Subordinate Certificate Writedown Amount. Any Subordinate Certificate
Writedown Amount shall effect a corresponding reduction in the Certificate
Principal Balance of the Class II-B Certificates in the reverse order of
their numerical Class designations.
(g) The applicable Senior Percentage of Net Interest Shortfalls will be
allocated among the Group II Senior Certificates in the related Group II
Certificate Group in proportion to the amount of Accrued Certificate Interest
that would have been allocated thereto in the absence of such shortfalls. The
applicable Subordinate Percentage of Net Interest Shortfall will be allocated
among the Group II Subordinate Certificates in proportion to the amount of
Accrued Certificate Interest that would have been allocated thereto in the
absence of such shortfalls. The interest portion of any Realized Losses with
respect to the Group II Mortgage Loans occurring on or prior to the
Cross-Over Date will be allocated to the Class II-B Certificates in inverse
order of their numerical Class designations. Following the Cross-Over Date,
the interest portion of Realized Losses on the Group II Mortgage Loans will
be allocated to the Group II Senior Certificates in the related Group II
Certificate Group on a pro rata basis in proportion to the amount of Accrued
Certificate Interest that would have been allocated thereto in the absence of
such Realized Losses.
(h) In addition, in the event that the Master Servicer receives any
Subsequent Recoveries from a Servicer, the Master Servicer shall deposit such
funds into the Master Servicer Collection Account pursuant to Section
4.01(c)(ii). If, after taking into account such Subsequent Recoveries, the
amount of a Realized Loss is reduced, the amount of such Subsequent
Recoveries will be applied to increase the Certificate Principal Balance of
the Class of Group II Subordinate Certificates with the highest payment
priority to which Realized Losses have been allocated, but not by more than
the amount of Realized Losses previously allocated to that Class of Group II
Subordinate Certificates pursuant to this Section 6.02.2. The amount of any
remaining Subsequent Recoveries will be applied to sequentially increase the
Certificate Principal Balance of the Group II Subordinate Certificates,
beginning with the Class of Group II Subordinate Certificates with the next
highest payment priority, up to the amount of such Realized Losses previously
allocated to such Class or Classes of Group II Certificates pursuant to this
Section 6.02.2. Holders of such Certificates will not be entitled to any
payments in respect of current interest on the amount of such increases for
any Interest Accrual Period preceding the Distribution Date on which such
increase occurs. Any such increases shall be applied to the Certificate
Principal Balance of each Group II Subordinate Certificate of such Class in
accordance with its respective Fractional Undivided Interest.
Section 6.02.3 Cross-Collateralization. Notwithstanding the
foregoing, on any Distribution Date on which the Certificate Principal
Balance of the Group I Subordinate Certificates or the Group II Subordinate
Certificates have been reduced to zero and a Realized Loss that is a Special
Hazard Loss is to be allocated to the related Senior Certificates, such loss
will be allocated among such Senior Certificates and the most subordinate
outstanding class of non-related Subordinate Certificates on a pro rata
basis, based on the Certificate Principal Balance thereof.
Section 6.03 Payments. (a) On each Distribution Date, other
than the final Distribution Date, the Securities Administrator shall
distribute to each Certificateholder of record as of the immediately
preceding Record Date the Certificateholder's pro rata share of its
Class (based on the aggregate Fractional Undivided Interest represented by
such Holder's Certificates) of all amounts required to be distributed on such
Distribution Date to such Class. The Securities Administrator shall
calculate the amount to be distributed to each Class and, based on such
amounts, the Securities Administrator shall determine the amount to be
distributed to each Certificateholder. The Securities Administrator's
calculations of payments shall be based solely on information provided to the
Securities Administrator by the Master Servicer. The Securities
Administrator shall not be required to confirm, verify or recompute any such
information but shall be entitled to rely conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be
made (i) by check mailed to each Certificateholder entitled thereto at the
address appearing in the Certificate Register or (ii) upon receipt by the
Securities Administrator on or before the fifth Business Day preceding the
Record Date of written instructions from a Certificateholder by wire transfer
to a United States dollar account maintained by the payee at any United
States depository institution with appropriate facilities for receiving such
a wire transfer; provided, however, that the final payment in respect of each
Class of Certificates will be made only upon presentation and surrender of
such respective Certificates at the office or agency of the Securities
Administrator specified in the notice to Certificateholders of such final
payment.
Section 6.04 Statements to Certificateholders. (a) On each
Distribution Date, concurrently with each distribution to Certificateholders,
the Securities Administrator shall make available to the parties hereto and
each Certificateholder via the Securities Administrator's internet website as
set forth below, the following information, expressed with respect to clauses
(i) through (vii) in the aggregate and as a Fractional Undivided Interest
representing an initial Certificate Principal Balance of $1,000, or in the
case of the Class B-IO Certificates, an initial Notional Amount of $1,000:
(i) the Certificate Principal Balance of each Class of Certificates
immediately prior to such Distribution Date;
(ii) the amount of the distribution allocable to principal on each applicable
Class of Certificates;
(iii) the aggregate amount of interest accrued at the related Pass-Through
Rate with respect to each Class during the related Interest Accrual Period;
(iv) the Net Interest Shortfall and any other adjustments to interest at the
related Pass-Through Rate necessary to account for any difference between
interest accrued and aggregate interest distributed with respect to each
Class of Certificates;
(v) the amount of the distribution allocable to interest on each Class of
Certificates;
(vi) the Pass-Through Rates for each Class of Certificates with respect to
such Distribution Date;
(vii) the Certificate Principal Balance of each Class of Certificates after
such Distribution Date;
(viii) the amount of any Monthly Advances, Compensating Interest Payments and
outstanding unreimbursed advances by the Master Servicer or the Servicer
included in such distribution separately stated for each Loan Group;
(ix) the aggregate amount of any Realized Losses (listed separately for each
category of Realized Loss and for each Loan Group) during the related
Prepayment Period and cumulatively since the Cut-off Date and Subsequent
Cut-off Date, as the case may be, and the amount and source (separately
identified) of any distribution in respect thereof included in such
distribution;
(x) with respect to each Mortgage Loan which incurred a Realized Loss during
the related Prepayment Period, (i) the loan number, (ii) the Stated Principal
Balance of such Mortgage Loan as of the Cut-off Date and Subsequent Cut-off
Date, as the case may be, (iii) the Stated Principal Balance of such Mortgage
Loan for such Distribution Date, (iv) the Net Liquidation Proceeds with
respect to such Mortgage Loan and (v) the amount of the Realized Loss with
respect to such Mortgage Loan;
(xi) with respect to each Loan Group, the amount of Scheduled Principal and
Principal Prepayments, (including but separately identifying the principal
amount of Principal Prepayments, Insurance Proceeds, the purchase price in
connection with the purchase of Mortgage Loans, cash deposits in connection
with substitutions of Mortgage Loans and Net Liquidation Proceeds) and the
number and principal balance of Mortgage Loans purchased or substituted for
during the relevant period and cumulatively since the Cut-off Date or the
related Subsequent Cut-off Date, as the case may be;
(xii) the number of Mortgage Loans (excluding REO Property) in each Loan
Group remaining in the Trust Fund as of the end of the related Prepayment
Period;
(xiii) information for each Loan Group and in the aggregate regarding any
Mortgage Loan delinquencies as of the end of the related Prepayment Period,
including the aggregate number and aggregate Outstanding Principal Balance of
Mortgage Loans (a) delinquent 30 to 59 days on a contractual basis, (b)
delinquent 60 to 89 days on a contractual basis, and (c) delinquent 90 or
more days on a contractual basis, in each case as of the close of business on
the last Business Day of the immediately preceding month;
(xiv) for each Loan Group, the number of Mortgage Loans in the foreclosure
process as of the end of the related Due Period and the aggregate Outstanding
Principal Balance of such Mortgage Loans;
(xv) for each Loan Group, the number and aggregate Outstanding Principal
Balance of all Mortgage Loans as to which the Mortgaged Property was REO
Property as of the end of the related Due Period;
(xvi) the book value (the sum of (A) the Outstanding Principal Balance of the
Mortgage Loan, (B) accrued interest through the date of foreclosure and (C)
foreclosure expenses) of any REO Property in each Loan Group; provided that,
in the event that such information is not available to the Securities
Administrator on the Distribution Date, such information shall be furnished
promptly after it becomes available;
(xvii) the amount of Realized Losses allocated to each Class of Certificates
since the prior Distribution Date and in the aggregate for all prior
Distribution Dates;
(xviii) the Average Loss Severity Percentage for each Loan Group;
(xix) the Senior Percentage, Senior Prepayment Percentage, Subordinate
Percentage and Subordinate Prepayment Percentage, in each case, for such
Distribution Date;
(xx) the Interest Carry Forward Amount and any Basis Risk Shortfall Carry
Forward Amount for each Class of Certificates;
(xxi) the amount of the distribution made on such Distribution Date to
Holders of each Class allocable to interest and the portion thereof, if any,
provided by the Cap Contracts;
(xxii) the amount withdrawn from the Pre-Funding Account, the Pre-Funding
Reserve Account and the Interest Coverage Account and deemed to be Principal
Funds or Interest Funds on that Distribution Date, the amount remaining on
deposit in the Pre-Funding Account and in the Interest Coverage Account,
following such Distribution Date, and the amount withdrawn from the
Pre-Funding Account and used to buy Subsequent Mortgage Loans prior to such
Distribution Date;
(xxiii) the cumulative amount of Applied Realized Loss Amounts to date; and
(xxiv) whether a Trigger Event exists.
The information set forth above shall be calculated or reported, as the
case may be, by the Securities Administrator, based solely on, and to the
extent of, information provided to the Securities Administrator by the Master
Servicer. The Securities Administrator may conclusively rely on such
information and shall not be required to confirm, verify or recalculate any
such information.
The Securities Administrator may make available each month, to any
interested party, the monthly statement to Certificateholders via the
Securities Administrator's website initially located at "xxx.xxxxxxx.xxx."
Assistance in using the website can be obtained by calling the Securities
Administrator's customer service desk at (000) 000-0000. Parties that are
unable to use the above distribution option are entitled to have a paper copy
mailed to them via first class mail by calling the Securities Administrator's
customer service desk and indicating such. The Securities Administrator
shall have the right to change the way such reports are distributed in order
to make such distribution more convenient and/or more accessible to the
parties, and the Securities Administrator shall provide timely and adequate
notification to all parties regarding any such change.
To the extent timely received from the Securities Administrator, the
Trustee will also make monthly statements available each month to
Certificateholders via the Trustee's internet website. The Trustee's
internet website will initially be located at xxx.xxxxxxxx.xxx/xxx.
Assistance in using the Trustee's website service can be obtained by calling
the Trustee's customer service desk at (000) 000-0000.
(b) Within a reasonable period of time after the end of the preceding
calendar year beginning in 2006, the Securities Administrator will furnish a
report to each Holder of the Certificates of record at any time during the
prior calendar year as to the aggregate of amounts reported pursuant to
subclauses (a)(ii) and (a)(v) above with respect to the Certificates, plus
information with respect to the amount of servicing compensation and such
other customary information as the Securities Administrator may determine to
be necessary and/or to be required by the Internal Revenue Service or by a
federal or state law or rules or regulations to enable such Holders to
prepare their tax returns for such calendar year. Such obligations shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator or the Trustee
pursuant to the requirements of the Code.
Section 6.05 Monthly Advances. If the Scheduled Payment on a Mortgage
Loan that was due on a related Due Date is delinquent, other than as a result
of application of the Relief Act, and for which the related Servicer was
required to make an advance pursuant to the related Servicing Agreement
exceeds the amount deposited in the Master Servicer Collection Account which
will be used for an advance with respect to such Mortgage Loan, the Master
Servicer will deposit in the Master Servicer Collection Account not later
than the Distribution Account Deposit Date immediately preceding the related
Distribution Date an amount equal to such deficiency, net of the Servicing
Fee for such Mortgage Loan except to the extent the Master Servicer
determines any such advance to be a Nonrecoverable Advance. Subject to the
foregoing, the Master Servicer shall continue to make such advances through
the date that the related Servicer is required to do so under its Servicing
Agreement. If the Master Servicer deems an advance to be a Nonrecoverable
Advance, on the Distribution Account Deposit Date, the Master Servicer shall
present an Officer's Certificate to the Trustee (i) stating that the Master
Servicer elects not to make a Monthly Advance in a stated amount and
(ii) detailing the reason it deems the advance to be a Nonrecoverable Advance.
Section 6.06 Compensating Interest Payments. The Master Servicer
shall deposit in the Master Servicer Collection Account not later than each
Distribution Account Deposit Date an amount equal to the lesser of (i) the
sum of the aggregate amounts required to be paid by the Servicers under the
Servicing Agreements with respect to subclauses (a) and (b) of the definition
of Interest Shortfall with respect to the Mortgage Loans for the related
Distribution Date, and not so paid by the related Servicers and (ii) the
Master Servicer Compensation for such Distribution Date (such amount, the
"Compensating Interest Payment"). The Master Servicer shall not be entitled
to any reimbursement of any Compensating Interest Payment.
Section 6.07 Distributions on REMIC Regular Interests.
(a) On each Distribution Date, the Securities Administrator shall be
deemed to distribute to the Trustee on behalf of REMIC III as the holder of
the REMIC I Regular Interests and REMIC II Regular Interests, those portions
of the REMIC I Distribution Amount not designated to Component I of the Class
R Certificate, in the amounts and in accordance with the priorities set forth
in the definition of REMIC I Distribution Amount and those portions of the
REMIC II Distribution Amount not designated to Component II of the Class R
Certificate, in the amounts and in accordance with the priorities set forth
in the definition of REMIC II Distribution Amount.
(b) On each Distribution Date, the Securities Administrator shall be
deemed to distribute to the Trustee on behalf of REMIC IV as the holder of
the REMIC III Regular Interests, those portions of the REMIC III Distribution
Amount not designated to Component III of the Class R Certificate, in the
amounts and in accordance with the priorities set forth in the definition of
REMIC III Distribution Amount.
(c) On each Distribution Date, the Securities Administrator shall be
deemed to distribute the REMIC IV Distribution Amount to: (i) the holders of
the Certificates (other than the Class B-IO Certificates), as the holders of
the REMIC IV Interests (other than REMIC IV Regular Interests B-IO-I and
B-IO-P) and (ii) itself on behalf of REMIC V, as the holder of REMIC IV
Regular Interests B-IO-I and B-IO-P, in the amounts and in accordance with
the priorities set forth in the definition of REMIC IV Distribution Amount.
(d) On each Distribution Date, the Securities Administrator shall be
deemed to distribute to the holder of the Class B-IO Certificates, as the
holder of REMIC V Regular Interest, the amounts set forth in the definition
of REMIC V Distribution Amount.
(e) Notwithstanding the deemed distributions on the REMIC Regular Interests
described in this Section 6.07, distributions of funds from the Distribution
Account shall be made only in accordance with Sections 6.01.1 and 6.01.2.
ARTICLE VII
The Master Servicer
Section 7.01 Liabilities of the Master Servicer. The Master Servicer shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by it herein.
Section 7.02 Merger or Consolidation of the Master Servicer.
(a) The Master Servicer will keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the state of its
incorporation, and will obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, the Certificates or any of the Mortgage Loans and to perform its
duties under this Agreement.
(b) Any Person into which the Master Servicer may be merged or consolidated,
or any corporation resulting from any merger or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
Section 7.03 Indemnification of the Trustee, the Master Servicer and the
Securities Administrator. (a) The Master Servicer agrees to indemnify the
Indemnified Persons for, and to hold them harmless against, any loss,
liability or expense (including reasonable legal fees and disbursements of
counsel) incurred on their part that may be sustained in connection with,
arising out of, or relating to, any claim or legal action (including any
pending or threatened claim or legal action) relating to this Agreement, the
Servicing Agreements, the Assignment Agreements or the Certificates or the
powers of attorney delivered by the Trustee hereunder (i) related to the
Master Servicer's failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) or (ii) incurred by reason of the
Master Servicer's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder, provided, in each case, that with respect
to any such claim or legal action (or pending or threatened claim or legal
action), the Trustee shall have given the Master Servicer and the Depositor
written notice thereof promptly after the Trustee shall have with respect to
such claim or legal action knowledge thereof. The Trustee's failure to give
any such notice shall not affect the Trustee's right to indemnification
hereunder, except to the extent the Master Servicer is materially prejudiced
by such failure to give notice. This indemnity shall survive the resignation
or removal of the Trustee, Master Servicer or the Securities Administrator
and the termination of this Agreement.
(a) The Depositor will indemnify any Indemnified Person for any loss,
liability or expense of any Indemnified Person not otherwise covered by the
Master Servicer's indemnification pursuant to Section 7.03(a).
Section 7.04 Limitations on Liability of the Master Servicer and Others.
Subject to the obligation of the Master Servicer to indemnify the Indemnified
Persons pursuant to Section 7.03:
(a) Neither the Master Servicer nor any of the directors, officers, employees
or agents of the Master Servicer shall be under any liability to the
Indemnified Persons, the Depositor, the Trust Fund or the Certificateholders
for taking any action or for refraining from taking any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Master Servicer or any such Person
against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of such Person's willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent of the
Master Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
(c) The Master Servicer, the Custodian and any director, officer, employee or
agent of the Master Servicer or the Custodian shall be indemnified by the
Trust and held harmless thereby against any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred on
their part that may be sustained in connection with, arising out of, or
related to, any claim or legal action (including any pending or threatened
claim or legal action) relating to this Agreement, the Certificates or any
Servicing Agreement (except to the extent that the Master Servicer is
indemnified by the Servicer thereunder), other than (i) any such loss,
liability or expense related to the Master Servicer's failure to perform its
duties in compliance with this Agreement (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement), or to
the Custodian's failure to perform its duties under the Custodial Agreement,
respectively, or (ii) any such loss, liability or expense incurred by reason
of the Master Servicer's or the Custodian's willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or under the
Custodial Agreement, as applicable, or by reason of reckless disregard of
obligations and duties hereunder or under the Custodial Agreement, as
applicable.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties
under this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion, with
the consent of the Trustee (which consent shall not be unreasonably
withheld), undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Master Servicer shall be entitled to be reimbursed therefor out of the Master
Servicer Collection Account as provided by Section 4.03. Nothing in this
Section 7.04(d) shall affect the Master Servicer's obligation to supervise,
or to take such actions as are necessary to ensure, the servicing and
administration of the Mortgage Loans pursuant to Section 3.01(a).
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement,
the Master Servicer shall not be required to investigate or make
recommendations concerning potential liabilities which the Trust might incur
as a result of such course of action by reason of the condition of the
Mortgaged Properties but shall give notice to the Trustee if it has notice of
such potential liabilities.
(f) The Master Servicer shall not be liable for any acts or omissions of any
Servicer, except as otherwise expressly provided herein.
Section 7.05 Master Servicer Not to Resign. Except as provided in
Section 7.07, the Master Servicer shall not resign from the obligations and
duties hereby imposed on it except upon a determination that any such duties
hereunder are no longer permissible under applicable law and such
impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of
Independent Counsel addressed to the Trustee to such effect delivered to the
Trustee. No such resignation by the Master Servicer shall become effective
until the Company or the Trustee or a successor to the Master Servicer
reasonably satisfactory to the Trustee shall have assumed the
responsibilities and obligations of the Master Servicer in accordance with
Section 8.02 hereof. The Trustee shall notify the Rating Agencies upon its
receipt of written notice of the resignation of the Master Servicer.
Section 7.06 Successor Master Servicer. In connection with the appointment
of any successor master servicer or the assumption of the duties of the
Master Servicer, the Company or the Trustee may make such arrangements for
the compensation of such successor master servicer out of payments on the
Mortgage Loans as the Company or the Trustee and such successor master
servicer shall agree. If the successor master servicer does not agree that
such market value is a fair price, such successor master servicer shall
obtain two quotations of market value from third parties actively engaged in
the servicing of single-family mortgage loans. Notwithstanding the
foregoing, the compensation payable to a successor master servicer may not
exceed the compensation which the Master Servicer would have been entitled to
retain if the Master Servicer had continued to act as Master Servicer
hereunder.
Section 7.07 Sale and Assignment of Master Servicing. The Master Servicer
may sell and assign its rights and delegate its duties and obligations in its
entirety as Master Servicer under this Agreement and the Company may
terminate the Master Servicer without cause and select a new Master Servicer;
provided, however, that: (i) the purchaser or transferee accepting such
assignment and delegation (a) shall be a Person which shall be qualified to
service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac; (b) shall have a net
worth of not less than $10,000,000 (unless otherwise approved by each Rating
Agency pursuant to clause (ii) below); (c) shall be reasonably satisfactory
to the Trustee (as evidenced in a writing signed by the Trustee); and (d)
shall execute and deliver to the Trustee an agreement, in form and substance
reasonably satisfactory to the Trustee, which contains an assumption by such
Person of the due and punctual performance and observance of each covenant
and condition to be performed or observed by it as master servicer under this
Agreement, any custodial agreement from and after the effective date of such
agreement; (ii) each Rating Agency shall be given prior written notice of the
identity of the proposed successor to the Master Servicer and each Rating
Agency's rating of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or
withdrawn as a result of such assignment, sale and delegation, as evidenced
by a letter to such effect delivered to the Master Servicer and the Trustee;
(iii) the Master Servicer assigning and selling the master servicing shall
deliver to the Trustee an Officer's Certificate and an Opinion of Independent
Counsel addressed to the Trustee, each stating that all conditions precedent
to such action under this Agreement have been completed and such action is
permitted by and complies with the terms of this Agreement; and (iv) in the
event the Master Servicer is terminated without cause by the Company, the
Company shall pay the terminated Master Servicer a termination fee equal to
0.25% of the aggregate Stated Principal Balance of the Mortgage Loans at the
time the master servicing of the Mortgage Loans is transferred to the
successor Master Servicer. No such assignment or delegation shall affect any
rights or liability of the Master Servicer arising prior to the effective
date thereof.
ARTICLE VIII
Default
Section 8.01 Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) and
only with respect to the defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the Distribution
Account any amount so required to be deposited pursuant to this Agreement
(other than a Monthly Advance), and such failure continues unremedied for a
period of three Business Days after the date upon which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Master Servicer; or
(ii) The Master Servicer fails to observe or perform in any material respect
any other material covenants and agreements set forth in this Agreement to be
performed by it, which covenants and agreements materially affect the rights
of Certificateholders, and such failure continues unremedied for a period of
60 days after the date on which written notice of such failure, properly
requiring the same to be remedied, shall have been given to the Master
Servicer by the Trustee or to the Master Servicer and the Trustee by the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 25% of the Trust Fund; or
(iii) There is entered against the Master Servicer a decree or order by a
court or agency or supervisory authority having jurisdiction in the premises
for the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order is unstayed and in effect for a
period of 60 consecutive days, or an involuntary case is commenced against
the Master Servicer under any applicable insolvency or reorganization statute
and the petition is not dismissed within 60 days after the commencement of
the case; or
(iv) The Master Servicer consents to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Master
Servicer or substantially all of its property; or the Master Servicer admits
in writing its inability to pay its debts generally as they become due, files
a petition to take advantage of any applicable insolvency or reorganization
statute, makes an assignment for the benefit of its creditors, or voluntarily
suspends payment of its obligations;
(v) The Master Servicer assigns or delegates its duties or rights under this
Agreement in contravention of the provisions permitting such assignment or
delegation under Sections 7.05 or 7.07; or
(vi) The Master Servicer fails to cause to be deposited, in the Distribution
Account any Monthly Advance (other than a Nonrecoverable Advance) by 5:00
p.m. New York City time on the Distribution Account Deposit Date.
In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee or the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 51% of the principal of the Trust Fund, by notice in writing to
the Master Servicer (and to the Trustee if given by such Certificateholders),
with a copy to the Rating Agencies, and with the consent of the Company, may
terminate all of the rights and obligations (but not the liabilities) of the
Master Servicer under this Agreement and in and to the Mortgage Loans and/or
the REO Property serviced by the Master Servicer and the proceeds thereof.
Upon the receipt by the Master Servicer of the written notice, all authority
and power of the Master Servicer under this Agreement, whether with respect
to the Certificates, the Mortgage Loans, REO Property or under any other
related agreements (but only to the extent that such other agreements relate
to the Mortgage Loans or related REO Property) shall, subject to
Section 8.02, automatically and without further action pass to and be vested
in the Trustee pursuant to this Section 8.01; and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of the Master Servicer as attorney-in-fact or otherwise, any and all
documents and other instruments and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of the Mortgage Loans and related documents, or otherwise. The Master
Servicer agrees to cooperate with the Trustee in effecting the termination of
the Master Servicer's rights and obligations hereunder, including, without
limitation, the transfer to the Trustee of (i) the property and amounts which
are then or should be part of the Trust or which thereafter become part of
the Trust; and (ii) originals or copies of all documents of the Master
Servicer reasonably requested by the Trustee to enable it to assume the
Master Servicer's duties thereunder. In addition to any other amounts which
are then, or, notwithstanding the termination of its activities under this
Agreement, may become payable to the Master Servicer under this Agreement,
the Master Servicer shall be entitled to receive, out of any amount received
on account of a Mortgage Loan or related REO Property, that portion of such
payments which it would have received as reimbursement under this Agreement
if notice of termination had not been given. The termination of the rights
and obligations of the Master Servicer shall not affect any obligations
incurred by the Master Servicer prior to such termination.
Notwithstanding the foregoing, if an Event of Default described in
clause (vi) of this Section 8.01 shall occur, the Trustee shall, by notice in
writing to the Master Servicer, which may be delivered by telecopy,
immediately terminate all of the rights and obligations of the Master
Servicer thereafter arising under this Agreement, but without prejudice to
any rights it may have as a Certificateholder or to reimbursement of Monthly
Advances and other advances of its own funds, and the Trustee shall act as
provided in Section 8.02 to carry out the duties of the Master Servicer,
including the obligation to make any Monthly Advance the nonpayment of which
was an Event of Default described in clause (vi) of this Section 8.01. Any
such action taken by the Trustee must be prior to the distribution on the
relevant Distribution Date.
Section 8.02 Trustee to Act; Appointment of Successor. (a) Upon the receipt
by the Master Servicer of a notice of termination pursuant to Section 8.01 or
an Opinion of Independent Counsel pursuant to Section 7.05 to the effect that
the Master Servicer is legally unable to act or to delegate its duties to a
Person which is legally able to act, the Trustee shall automatically become
the successor in all respects to the Master Servicer in its capacity under
this Agreement and the transactions set forth or provided for herein and
shall thereafter be subject to all the responsibilities, duties, liabilities
and limitations on liabilities relating thereto placed on the Master Servicer
by the terms and provisions hereof; provided, however, that the Company shall
have the right to either (a) immediately assume the duties of the Master
Servicer or (b) select a successor Master Servicer; provided further,
however, that the Trustee shall have no obligation whatsoever with respect to
any liability (other than advances deemed recoverable and not previously
made) incurred by the Master Servicer at or prior to the time of
termination. As compensation therefor, but subject to Section 7.06, the
Trustee shall be entitled to compensation which the Master Servicer would
have been entitled to retain if the Master Servicer had continued to act
hereunder, except for those amounts due the Master Servicer as reimbursement
permitted under this Agreement for advances previously made or expenses
previously incurred. Notwithstanding the above, the Trustee may, if it shall
be unwilling so to act, or shall, if it is legally unable so to act, appoint
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution which is a Xxxxxx Xxx- or Xxxxxxx
Mac-approved servicer, and with respect to a successor to the Master Servicer
only, having a net worth of not less than $10,000,000, as the successor to
the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, that the Trustee shall obtain a letter from each Rating Agency that
the ratings, if any, on each of the Certificates will not be lowered as a
result of the selection of the successor to the Master Servicer. Pending
appointment of a successor to the Master Servicer hereunder, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it
and such successor shall agree; provided, however, that the provisions of
Section 7.06 shall apply, the compensation shall not be in excess of that
which the Master Servicer would have been entitled to if the Master Servicer
had continued to act hereunder, and that such successor shall undertake and
assume the obligations of the Trustee to pay compensation to any third Person
acting as an agent or independent contractor in the performance of master
servicing responsibilities hereunder. The Trustee and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
(b) If the Trustee shall succeed to any duties of the Master Servicer
respecting the Mortgage Loans as provided herein, it shall do so in a
separate capacity and not in its capacity as Trustee and, accordingly, the
provisions of Article IX shall be inapplicable to the Trustee in its duties
as the successor to the Master Servicer in the servicing of the Mortgage
Loans (although such provisions shall continue to apply to the Trustee in its
capacity as Trustee); the provisions of Article VII, however, shall apply to
it in its capacity as successor master servicer.
Section 8.03 Notification to Certificateholders. Upon any termination or
appointment of a successor to the Master Servicer, the Trustee shall give
prompt written notice thereof to the Rating Agencies and the Securities
Administrator, and the Securities Administrator shall give prompt written
notice thereof to the Certificateholders at their respective addresses
appearing in the Certificate Register.
Section 8.04 Waiver of Defaults. The Trustee shall transmit by mail to the
Securities Administrator, who shall give prompt written notice thereof to all
Certificateholders, within 60 days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Trustee, unless such
Event of Default shall have been cured, notice of each such Event of
Default. The Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund may, on behalf of
all Certificateholders, waive any default by the Master Servicer in the
performance of its obligations hereunder and the consequences thereof, except
a default in the making of or the causing to be made any required
distribution on the Certificates, which default may only be waived by Holders
of Certificates evidencing Fractional Undivided Interests aggregating 100% of
the Trust Fund. Upon any such waiver of a past default, such default shall
be deemed to cease to exist, and any Event of Default arising therefrom shall
be deemed to have been timely remedied for every purpose of this Agreement.
No such waiver shall extend to any subsequent or other default or impair any
right consequent thereon except to the extent expressly so waived. The
Securities Administrator shall give notice of any such waiver to the Trustee,
who shall then give such notice to the Rating Agencies.
Section 8.05 List of Certificateholders. Upon written request of three or
more Certificateholders of record, for purposes of communicating with other
Certificateholders with respect to their rights under this Agreement, the
Securities Administrator will afford such Certificateholders access during
business hours to the most recent list of Certificateholders held by the
Securities Administrator.
ARTICLE IX
Concerning the Trustee and the Securities Administrator
Section 9.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiver of all Events of Default which may have occurred, and the
Securities Administrator each undertake to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the
Trustee and the Securities Administrator, respectively. If an Event of
Default has occurred and has not been cured or waived, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and
subject to Section 8.02(b) use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances in the
conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments which are specifically
required to be furnished to the Trustee and the Securities Administrator
pursuant to any provision of this Agreement, the Trustee and the Securities
Administrator, respectively, shall examine them to determine whether they are
in the form required by this Agreement; provided, however, that neither the
Trustee nor the Securities Administrator shall be responsible for the
accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished hereunder; provided,
further, that neither the Trustee nor the Securities Administrator shall be
responsible for the accuracy or verification of any calculation provided to
it pursuant to this Agreement.
(c) On each Distribution Date, the Securities Administrator shall make
monthly distributions and the final distribution to the Certificateholders
from funds in the Distribution Account as provided in Sections 6.01 and 10.01
herein based solely on the report of the Securities Administrator.
(d) No provision of this Agreement shall be construed to relieve the Trustee
or the Securities Administrator from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing or
waiver of all such Events of Default which may have occurred, the duties and
obligations of the Trustee and the Securities Administrator shall be
determined solely by the express provisions of this Agreement, neither the
Trustee nor the Securities Administrator shall be liable except for the
performance of their respective 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 or the Securities Administrator
and, in the absence of bad faith on the part of the Trustee or the Securities
Administrator, respectively, the Trustee or the Securities Administrator,
respectively, 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 or the Securities Administrator,
respectively, and conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Securities Administrator shall be liable in
its individual capacity for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee or an officer of
the Securities Administrator, respectively, unless it shall be proved that
the Trustee or the Securities Administrator, respectively, was negligent in
ascertaining the pertinent facts;
(iii) Neither the Trustee nor the Securities Administrator shall be liable
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the directions of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 25% of
the Trust Fund, if such action or non-action relates to the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
the Securities Administrator, respectively, or exercising any trust or other
power conferred upon the Trustee or the Securities Administrator,
respectively, under this Agreement;
(iv) The Trustee shall not be required to take notice or be deemed to have
notice or knowledge of any default or Event of Default unless a Responsible
Officer of the Trustee's Corporate Trust Office shall have actual knowledge
thereof. In the absence of such notice, the Trustee may conclusively assume
there is no such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of any insufficiency
in any Account held by or in the name of Trustee unless it is determined by a
court of competent jurisdiction that the Trustee's gross negligence or
willful misconduct was the primary cause of such insufficiency (except to the
extent that the Trustee is obligor and has defaulted thereon);
(vi) The Securities Administrator shall not in any way be liable by reason of
any insufficiency in any Account held by the Securities Administrator
hereunder or any Account held by the Securities Administrator in the name of
the Trustee unless it is determined by a court of competent jurisdiction that
the Securities Administrator's gross negligence or willful misconduct was the
primary cause of such insufficiency (except to the extent that the Securities
Administrator is obligor and has defaulted thereon);
(vii) Anything in this Agreement to the contrary notwithstanding, in no event
shall the Trustee or the Securities 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 Trustee or the Securities
Administrator, respectively, has been advised of the likelihood of such loss
or damage and regardless of the form of action;
(viii) None of the Securities Administrator, the Master Servicer, the
Depositor, the Company, the Custodian, the Counterparty or the Trustee shall
be responsible for the acts or omissions of the other, it being understood
that this Agreement shall not be construed to render them partners, joint
venturers or agents of one another and
(ix) Neither the Trustee nor the Securities Administrator shall
be required to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee or the
Securities Administrator to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement, except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges
of, the Master Servicer in accordance with the terms of this Agreement.
(e) All funds received by the Master Servicer and the Securities
Administrator and required to be deposited in the Master Servicer Collection
Account, the Pre-Funding Account, the Pre-Funding Reserve Account, the
Interest Coverage Account or the Distribution Account, as the case may be,
pursuant to this Agreement will be promptly so deposited by the Master
Servicer or the Securities Administrator, as applicable.
(f) Except for those actions that the Trustee or the Securities Administrator
is required to take hereunder, neither the Trustee nor the Securities
Administrator shall have any obligation or liability to take any action or to
refrain from taking any action hereunder in the absence of written direction
as provided hereunder.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator. Except as otherwise provided in Section 9.01:
(a) The Trustee and the Securities Administrator may rely and shall be
protected in acting or refraining from acting in reliance on any resolution,
certificate of the Securities Administrator (with respect to the Trustee
only), the Depositor, the Master Servicer or a Servicer, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) The Trustee and the Securities Administrator may consult with counsel and
any advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection with respect to any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(c) Neither the Trustee nor the Securities Administrator shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement, other than its obligation to give notices pursuant to this
Agreement, or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby. Nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default of
which a Responsible Officer of the Trustee has actual knowledge (which has
not been cured or waived), to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise, as a prudent person would exercise under the circumstances in
the conduct of his own affairs;
(d) Prior to the occurrence of an Event of Default hereunder and after the
curing or waiver of all Events of Default which may have occurred, neither
the Trustee nor the Securities Administrator shall be liable in its
individual capacity for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement;
(e) Neither the Trustee nor the Securities Administrator shall be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless requested
in writing to do so by Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the Trust Fund and
provided that the payment within a reasonable time to the Trustee or the
Securities Administrator, as applicable, 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 or the Securities Administrator, as
applicable, reasonably assured to the Trustee or the Securities
Administrator, as applicable, by the security afforded to it by the terms of
this Agreement. The Trustee or the Securities Administrator may require
reasonable indemnity against such expense or liability as a condition to
taking any such action. The reasonable expense of every such examination
shall be paid by the Certificateholders requesting the investigation;
(f) The Trustee and the Securities Administrator may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or
through Affiliates, agents or attorneys; provided, however, that the Trustee
may not appoint any agent (other than the Custodian) to perform its custodial
functions with respect to the Mortgage Files or paying agent functions under
this Agreement without the express written consent of the Master Servicer,
which consent will not be unreasonably withheld. Neither the Trustee nor the
Securities Administrator shall be liable or responsible for the misconduct or
negligence of any of the Trustee's or the Securities Administrator's agents
or attorneys or a custodian or paying agent appointed hereunder by the
Trustee or the Securities Administrator with due care and, when required,
with the consent of the Master Servicer;
(g) Should the Trustee or the Securities Administrator deem the nature of any
action required on its part, other than a payment or transfer by the
Securities Administrator under Section 4.01(b) or Section 4.02, to be
unclear, the Trustee or the Securities Administrator, respectively, may
require prior to such action that it be provided by the Depositor with
reasonable further instructions;
(h) The right of the Trustee or the Securities Administrator to perform any
discretionary act enumerated in this Agreement shall not be construed as a
duty, and neither the Trustee nor the Securities Administrator shall be
accountable for other than its negligence or willful misconduct in the
performance of any such act;
(i) Neither the Trustee nor the Securities Administrator shall be required to
give any bond or surety with respect to the execution of the trust created
hereby or the powers granted hereunder, except as provided in Section 9.07;
and
(j) Neither the Trustee nor the Securities Administrator shall have any duty
to conduct any affirmative investigation as to the occurrence of any
condition requiring the repurchase of any Mortgage Loan by the Seller
pursuant to this Agreement, the Mortgage Loan Purchase Agreement or
Subsequent Mortgage Loan Purchase Agreement, as applicable, or the
eligibility of any Mortgage Loan for purposes of this Agreement.
Section 9.03 Trustee and Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates
(other than the signature and countersignature of the Securities
Administrator on the Certificates) shall be taken as the statements of the
Depositor, and neither the Trustee nor the Securities Administrator shall
have any responsibility for their correctness. Neither the Trustee nor the
Securities Administrator makes any representation as to the validity or
sufficiency of the Certificates (other than the signature and
countersignature of the Securities Administrator on the Certificates) or of
any Mortgage Loan except as expressly provided in Sections 2.02 and 2.05
hereof; provided, however, that the foregoing shall not relieve the Trustee
of the obligation to review the Mortgage Files pursuant to Sections 2.02 and
2.04. The Securities Administrator's signature and countersignature (or
countersignature of its agent) on the Certificates shall be solely in its
capacity as Securities Administrator and shall not constitute the
Certificates an obligation of the Securities Administrator in any other
capacity. Neither the Trustee nor the Securities Administrator shall be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor with respect to the Mortgage
Loans. Subject to the provisions of Section 2.05, neither the Trustee nor
the Securities Administrator shall be responsible for the legality or
validity of this Agreement or any document or instrument relating to this
Agreement, the validity of the execution of this Agreement or of any
supplement hereto or instrument of further assurance, or the validity,
priority, perfection or sufficiency of the security for the Certificates
issued hereunder or intended to be issued hereunder. Neither the Trustee nor
the Securities Administrator shall at any time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Mortgage or any Mortgage Loan, or the perfection and priority of any
Mortgage or the maintenance of any such perfection and priority, or for or
with respect to the sufficiency of the Trust Fund or its ability to generate
the payments to be distributed to Certificateholders, under this Agreement.
Neither the Trustee nor the Securities Administrator shall have any
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to record this
Agreement other than any continuation statements filed by the Trustee
pursuant to Section 3.20.
Section 9.04 Trustee and Securities Administrator May Own Certificates. The
Trustee and the Securities Administrator in their individual capacities or in
any capacity other than as Trustee or Securities Administrator, hereunder may
become the owner or pledgee of any Certificates with the same rights it would
have if it were not the Trustee or the Securities Administrator, as
applicable, and may otherwise deal with the parties hereto.
Section 9.05 Trustee's and Securities Administrator's Fees and Expenses. The
fees and expenses of the Trustee and the Securities Administrator shall be
paid in accordance with a side letter agreement between the Trustee and the
Master Servicer. In addition, the Trustee and the Securities Administrator
will be entitled to recover from the Master Servicer Collection Account
pursuant to Section 4.03(b) all reasonable out-of-pocket expenses,
disbursements and advances and the expenses of the Trustee and the Securities
Administrator, respectively, in connection with any Event of Default, any
breach of this Agreement or any claim or legal action (including any pending
or threatened claim or legal action) incurred or made by or against the
Trustee or the Securities Administrator, respectively, in the administration
of the trusts hereunder (including the reasonable compensation, expenses and
disbursements of its counsel) except any such expense, disbursement or
advance as may arise from its negligence or intentional misconduct or which
is the responsibility of the Certificateholders. If funds in the Master
Servicer Collection Account are insufficient therefor, the Trustee and the
Securities Administrator shall recover such expenses from the Depositor.
Such compensation and reimbursement obligation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust.
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator. The Trustee and any successor Trustee and the Securities
Administrator and any successor Securities Administrator shall during the
entire duration of this Agreement be a state bank or trust company or a
national banking association organized and doing business under the laws of
such state or the United States of America, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus and
undivided profits of at least $40,000,000 or, in the case of a successor
Trustee, $50,000,000, subject to supervision or examination by federal or
state authority and, in the case of the Trustee, rated "BBB" or higher by S&P
with respect to their long-term rating and rated "BBB" or higher by S&P and
"Baa2" or higher by Moody's with respect to any outstanding long-term
unsecured unsubordinated debt, and, in the case of a successor Trustee or
successor Securities Administrator other than pursuant to Section 9.10, rated
in one of the two highest long-term debt categories of, or otherwise
acceptable to, each of the Rating Agencies. If the Trustee publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 9.06 the combined capital and surplus of such corporation shall be
deemed to be its total equity capital (combined capital and surplus) as set
forth in its most recent report of condition so published. In case at any
time the Trustee or the Securities Administrator shall cease to be eligible
in accordance with the provisions of this Section 9.06, the Trustee or the
Securities Administrator shall resign immediately in the manner and with the
effect specified in Section 9.08.
Section 9.07 Insurance. The Trustee and the Securities Administrator, at
their own expense, shall at all times maintain and keep in full force and
effect: (i) fidelity insurance, (ii) theft of documents insurance and
(iii) forgery insurance (which may be collectively satisfied by a "Financial
Institution Bond" and/or a "Bankers' Blanket Bond"). All such insurance
shall be in amounts, with standard coverage and subject to deductibles, as
are customary for insurance typically maintained by banks or their affiliates
which act as custodians for investor-owned mortgage pools. A certificate of
an officer of the Trustee or the Securities Administrator as to the Trustee's
or the Securities Administrator's, respectively, compliance with this
Section 9.07 shall be furnished to any Certificateholder upon reasonable
written request.
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator.
(a) The Trustee and the Securities Administrator may at any time resign and
be discharged from the Trust hereby created by giving written notice thereof
to the Depositor and the Master Servicer, with a copy to the Rating
Agencies. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor Trustee or successor Securities Administrator,
as applicable, by written instrument, in triplicate, one copy of which
instrument shall be delivered to each of the resigning Trustee or Securities
Administrator, as applicable, the successor Trustee or Securities
Administrator, as applicable. If no successor Trustee or Securities
Administrator shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee or Securities Administrator may petition any court of competent
jurisdiction for the appointment of a successor Trustee or Securities
Administrator.
(b) If at any time the Trustee or the Securities Administrator shall cease to
be eligible in accordance with the provisions of Section 9.06 and shall fail
to resign after written request therefor by the Depositor or if at any time
the Trustee or the Securities Administrator shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or
the Securities Administrator, as applicable, or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee
or the Securities Administrator, as applicable, or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, then the
Depositor shall promptly remove the Trustee, or shall be entitled to remove
the Securities Administrator, as applicable, and appoint a successor Trustee
or Securities Administrator, as applicable, by written instrument, in
triplicate, one copy of which instrument shall be delivered to each of the
Trustee or Securities Administrator, as applicable, so removed, and the
successor Trustee or Securities Administrator, as applicable.
(c) The Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 51% of the Trust Fund may at any time remove the
Trustee or the Securities Administrator and appoint a successor Trustee or
Securities Administrator by written instrument or instruments, in
quintuplicate, signed by such Holders or their attorneys-in-fact duly
authorized, one complete set of which instruments shall be delivered to the
Depositor, the Master Servicer, the Securities Administrator (if the Trustee
is removed), the Trustee (if the Securities Administrator is removed), and
the Trustee or Securities Administrator so removed and the successor so
appointed. In the event that the Trustee or Securities Administrator is
removed by the Holders of Certificates in accordance with this
Section 9.08(c), the Holders of such Certificates shall be responsible for
paying any compensation payable hereunder to a successor Trustee or successor
Securities Administrator, in excess of the amount paid hereunder to the
predecessor Trustee or predecessor Securities Administrator, as applicable.
(d) No resignation or removal of the Trustee or the Securities Administrator
and appointment of a successor Trustee or Securities Administrator pursuant
to any of the provisions of this Section 9.08 shall become effective except
upon appointment of and acceptance of such appointment by the successor
Trustee or Securities Administrator as provided in Section 9.09.
Section 9.09 Successor Trustee and Successor Securities Administrator.
(a) Any successor Trustee or Securities Administrator appointed as provided
in Section 9.08 shall execute, acknowledge and deliver to the Depositor and
to its predecessor Trustee or Securities Administrator an instrument
accepting such appointment hereunder. The resignation or removal of the
predecessor Trustee or Securities Administrator shall then become effective
and such successor Trustee or Securities 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 like effect
as if originally named as Trustee or Securities Administrator herein. The
predecessor Trustee or Securities Administrator shall, after its receipt of
payment in full of its outstanding fees and expenses promptly deliver to the
successor Trustee or Securities Administrator, as applicable, all assets and
records of the Trust held by it hereunder, and the Depositor and the
predecessor Trustee or Securities Administrator, as applicable, 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 or Securities Administrator, as applicable, all such rights, powers,
duties and obligations.
(b) No successor Trustee or Securities Administrator shall accept appointment
as provided in this Section 9.09 unless at the time of such acceptance such
successor Trustee or Securities Administrator shall be eligible under the
provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee or Securities
Administrator as provided in this Section 9.09, the successor Trustee or
Securities Administrator shall mail notice of the succession of such Trustee
or Securities Administrator hereunder to all Certificateholders at their
addresses as shown in the Certificate Register and to the Rating Agencies.
The Company shall pay the cost of any mailing by the successor Trustee or
Securities Administrator.
Section 9.10 Merger or Consolidation of Trustee or Securities Administrator.
Any state bank or trust company or national banking association into which
the Trustee or the Securities Administrator may be merged or converted or
with which it may be consolidated or any state bank or trust company or
national banking association resulting from any merger, conversion or
consolidation to which the Trustee or the Securities Administrator,
respectively, shall be a party, or any state bank or trust company or
national banking association succeeding to all or substantially all of the
corporate trust business of the Trustee or the Securities Administrator,
respectively, shall be the successor of the Trustee or the Securities
Administrator, respectively, hereunder, provided such state bank or trust
company or national banking association shall be eligible under the
provisions of Section 9.06. Such succession shall be valid without the
execution, delivery of notice or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 9.11 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any part of
the Trust or property constituting the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved
by the Trustee and the Depositor to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any
part of the Trust, and to vest in such Person or Persons, in such capacity,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section 9.11, such powers, duties, obligations, rights and
trusts as the Depositor and the Trustee may consider necessary or desirable.
(b) If the Depositor shall not have joined in such appointment within 15 days
after the receipt by it of a written request so to do, the Trustee shall have
the power to make such appointment without the Depositor.
(c) No co-trustee or separate trustee hereunder shall be required to meet the
terms of eligibility as a successor Trustee under Section 9.06 hereunder and
no notice to Certificateholders of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 9.08 hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred on such
co-trustee shall be conferred or imposed upon and exercised or performed by
the Trustee and such separate trustee or co-trustee jointly, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer hereunder), the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the
conditions of this Article IX. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or co-trustee
may, at any time, request the Trustee, its agent or attorney-in-fact, with
full power and authority, to do any lawful act under or with respect to this
Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
(g) No trustee under this Agreement shall be personally liable by reason of
any act or omission of another trustee under this Agreement. The Depositor
and the Trustee acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Section 9.12 Federal Information Returns and Reports to Certificateholders;
REMIC Administration.
(a) For federal income tax purposes, the taxable year of each 2005-9 REMIC
shall be a calendar year and the Securities Administrator shall maintain or
cause the maintenance of the books of each such 2005-9 REMIC on the accrual
method of accounting.
(b) The Securities Administrator shall prepare and file or cause to be filed
with the Internal Revenue Service, and the Trustee shall upon the written
instruction of the Securities Administrator sign, Federal tax information
returns or elections required to be made hereunder with respect to each
2005-9 REMIC, the Trust Fund, if applicable, and the Certificates containing
such information and at the times and in the manner as may be required by the
Code or applicable Treasury regulations, and the Securities Administrator
shall furnish to each Holder of Certificates at any time during the calendar
year for which such returns or reports are made such statements or
information at the times and in the manner as may be required thereby,
including, without limitation, reports relating to mortgaged property that is
abandoned or foreclosed, receipt of mortgage interests in kind in a trade or
business, a cancellation of indebtedness, interest, original issue discount
and market discount or premium (using a constant prepayment assumption of 30%
CPR for the Group I Mortgage Loans and 25% CPR for the Group II Mortgage
Loans). The Securities Administrator will apply for an Employee
Identification Number from the IRS under Form SS-4 or any other acceptable
method for all tax entities. In connection with the foregoing, the
Securities Administrator shall timely prepare and file, and the Trustee shall
upon the written instruction of the Securities Administrator sign, IRS Form
8811, which shall provide the name and address of the person who can be
contacted to obtain information required to be reported to the holders of
regular interests in each 2005-9 REMIC (the "REMIC Reporting Agent"). The
Trustee shall make elections to treat each 2005-9 REMIC as a REMIC (which
elections shall apply to the taxable period ending December 31, 2005 and each
calendar year thereafter) in such manner as the Code or applicable Treasury
regulations may prescribe, and as described by the Securities Administrator.
The Trustee shall upon the written instruction of the Securities
Administrator sign all tax information returns filed pursuant to this
Section and any other returns as may be required by the Code. The Holder of
the largest percentage interest in the Residual Certificates is hereby
designated as the "Tax Matters Person" (within the meaning of Treas. Reg.
§§1.860F-4(d)) for each 2005-9 REMIC. The Securities Administrator is hereby
designated and appointed as the agent of each such Tax Matters Person. Any
Holder of a Residual Certificate will by acceptance thereof appoint the
Securities Administrator as agent and attorney-in-fact for the purpose of
acting as Tax Matters Person for each 2005-9 REMIC during such time as the
Securities Administrator does not own any such Residual Certificate. In the
event that the Code or applicable Treasury regulations prohibit the Trustee
from signing tax or information returns or other statements, or the
Securities Administrator from acting as agent for the Tax Matters Person, the
Trustee and the Securities Administrator shall take whatever action that in
their sole good faith judgment is necessary for the proper filing of such
information returns or for the provision of a tax matters person, including
designation of the Holder of the largest percentage interest in a Residual
Certificate to sign such returns or act as tax matters person. Each Holder
of a Residual Certificate shall be bound by this Section.
(c) The Securities Administrator shall provide upon request and receipt of
reasonable compensation, such information as required in
Section 860D(a)(6)(B) of the Code to the Internal Revenue Service, to any
Person purporting to transfer a Residual Certificate to a Person other than a
transferee permitted by Section 5.05(b), and to any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate, organization described in Section 1381 of the Code, or nominee
holding an interest in a pass-through entity described in Section 860E(e)(6)
of the Code, any record holder of which is not a transferee permitted by
Section 5.05(b) (or which is deemed by statute to be an entity with a
disqualified member).
(d) The Securities Administrator shall prepare and file or cause to be filed,
and the Trustee shall upon the written instruction of the Securities
Administrator sign, any state income tax returns required under Applicable
State Law with respect to each REMIC or the Trust Fund.
(e) Notwithstanding any other provision of this Agreement, the Securities
Administrator shall comply with all federal withholding requirements
respecting payments to Certificateholders of interest or original issue
discount on the Mortgage Loans, that the Securities Administrator reasonably
believes are applicable under the Code. The consent of Certificateholders
shall not be required for such withholding. In the event the Securities
Administrator withholds any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Securities Administrator shall, together with
its monthly report to such Certificateholders, indicate such amount withheld.
(f) The Trustee and the Securities Administrator agree to indemnify the Trust
Fund and the Depositor for any taxes and costs including, without limitation,
any reasonable attorneys fees imposed on or incurred by the Trust Fund, the
Depositor or the Master Servicer, as a result of a breach of the Trustee's
covenants and the Securities Administrator's covenants, respectively, set
forth in this Section 9.12; provided, however, such liability and obligation
to indemnify in this paragraph shall be several and not joint and neither the
Trustee nor the Securities Administrator shall be liable or be obligated to
indemnify the Trust Fund for the failure by the other to perform any duty
under this Agreement or the breach by the other of any covenant in this
Agreement.
ARTICLE X
Termination
Xxxxxxx 00.00 Xxxxxxxxxxx Xxxx Xxxxxxxxxx by EMC or its Designee or
Liquidation of the Mortgage Loans.
(a) Subject to Section 10.02, the respective obligations and responsibilities
of the Depositor, the Trustee, the Master Servicer and the Securities
Administrator created hereby, other than the obligation of the Securities
Administrator to make payments to Certificateholders as set forth in this
Section 10.01 shall terminate:
(i) in accordance with Section 10.01(c), the repurchase by or at the
direction of EMC or its designee of all of the Mortgage Loans in each of Loan
Group I and Loan Group II (which repurchase of the Group I Mortgage Loans and
the Group II Mortgage Loans may occur on separate dates) and all related REO
Property remaining in the Trust at a price (the "Termination Purchase Price")
equal to the sum of (without duplication) (a) 100% of the Outstanding
Principal Balance of each Mortgage Loan in such Loan Group (other than a
Mortgage Loan related to REO Property) as of the date of repurchase, net of
the principal portion of any unreimbursed Monthly Advances on the Mortgage
Loans relating to the Mortgage Loans made by the purchaser, plus accrued but
unpaid interest thereon at the applicable Mortgage Interest Rate to, but not
including, the first day of the month of repurchase, (b) the appraised value
of any related REO Property, less the good faith estimate of the Depositor of
liquidation expenses to be incurred in connection with its disposal thereof
(but not more than the Outstanding Principal Balance of the related Mortgage
Loan, together with interest at the applicable Mortgage Interest Rate accrued
on that balance but unpaid to, but not including, the first day of the month
of repurchase), such appraisal to be calculated by an appraiser mutually
agreed upon by the Depositor and the Trustee at the expense of the Depositor,
(c) unreimbursed out-of pocket costs of the Master Servicer, including
unreimbursed servicing advances and the principal portion of any unreimbursed
Monthly Advances, made on the Mortgage Loans in such Loan Group prior to the
exercise of such repurchase right, (d) any costs and damages incurred by the
Trust in connection with any violation of any predatory or abusive lending
laws with respect to a Mortgage Loan, and (e) any unreimbursed costs and
expenses of the Trustee and the Securities Administrator payable pursuant to
Section 9.05;
(ii) the later of the making of the final payment or other liquidation, or
any advance with respect thereto, of the last Mortgage Loan, remaining in the
Trust Fund or the disposition of all property acquired with respect to any
Mortgage Loan; provided, however, that in the event that an advance has been
made, but not yet recovered, at the time of such termination, the Person
having made such advance shall be entitled to receive, notwithstanding such
termination, any payments received subsequent thereto with respect to which
such advance was made; or
(iii) the payment to the Certificateholders of all amounts required to be
paid to them pursuant to this Agreement.
(b) In no event, however, shall the Trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court
of St. James's, living on the date of this Agreement.
(c) (i) The right of EMC or its
designee to repurchase Group I Mortgage Loans and related assets described in
Section 10.01(a)(i) above shall be exercisable only if the aggregate Stated
Principal Balance of the Mortgage Loans at the time of any such repurchase is
less than 20% of the sum of the Cut-off Date Balance.
(ii) The right of EMC or its designee to repurchase Group II
Mortgage Loans and related assets described in Section 10.01(a)(i) above
shall be exercisable only if the aggregate Stated Principal Balance of the
Mortgage Loans at the time of any such repurchase is less than 10% of the
sum of the Cut-off Date Balance.
(iii) The right of EMC or its designee to repurchase all the
assets of the Trust Fund described in Section 10.01(a)(i) above shall also be
exercisable if the Depositor, based upon an Opinion of Counsel addressed to
the Depositor, the Trustee and the Securities Administrator has determined
that the REMIC status of any 2005-9 REMIC has been lost or that a substantial
risk exists that such REMIC status will be lost for the then-current taxable
year.
(iv) At any time thereafter, in the case of (i) and
(ii) or (iii) above, EMC may elect to terminate any 2005-9 REMIC at any
time, and upon such election, the Depositor or its designee, shall purchase
in accordance with Section 10.01(a)(i) above all the assets of the Trust
Fund.
(d) The Securities Administrator shall give notice of any termination to the
Certificateholders, with a copy to the Master Servicer and the Trustee (who
shall then give such copy of notice to the Rating Agencies) upon which the
Certificateholders shall surrender their Certificates to the Securities
Administrator for payment of the final distribution and cancellation. Such
notice shall be given by letter, mailed not earlier than the l5th day and not
later than the 25th day of the month next preceding the month of such final
distribution, and shall specify (i) the Distribution Date upon which final
payment of the Certificates will be made upon presentation and surrender of
the Certificates at the Corporate Trust Office of the Securities
Administrator therein designated, (ii) the amount of any such final payment
and (iii) that the Record Date otherwise applicable to such Distribution Date
is not applicable, payments being made only upon presentation and surrender
of the Certificates at the Corporate Trust Office of the Securities
Administrator therein specified.
(e) If the option of EMC to repurchase or cause the repurchase of all Group I
Mortgage Loans or the Group II Mortgage Loans and the related assets
described in Section 10.01(c) above is exercised, EMC and/or its designee
shall deliver to the Securities Administrator for deposit in the Distribution
Account, by the Business Day prior to the applicable Distribution Date, an
amount equal to the Termination Purchase Price of the Mortgage Loans being
repurchased on such Distribution Date. Upon presentation and surrender of the
related Certificates by the related Certificateholders, the Securities
Administrator shall distribute to such Certificateholders from amounts then
on deposit in the Distribution Account an amount determined as follows: with
respect to each such Certificate (other than the Residual Certificates and
the Class XP Certificates), the outstanding Certificate Principal Balance,
plus with respect to each such Certificate (other than the Residual
Certificates and the Class XP Certificates), one month's interest thereon at
the applicable Pass-Through Rate; and with respect to the Class R
Certificates and the Class XP Certificates, the percentage interest evidenced
thereby multiplied by the difference, if any, between the above described
repurchase price and the aggregate amount to be distributed to the Holders of
the related Certificates (other than the Residual Certificates and the Class
XP Certificates). If the amounts then on deposit in the Distribution Account
are not sufficient to pay all of the related Certificates in full (other than
the Residual Certificates and the Class XP Certificates), any such deficiency
will be allocated in the case of a repurchase of the Group I Mortgage Loans,
first, to the Class I-B Certificates, in inverse order of their numerical
designation, second, to the Class I-M Certificates, in inverse order of their
numerical designation, and then to the related Senior Certificates, on a pro
rata basis and in the case of a repurchase of the Group II Mortgage Loans,
first, to the Class II-B Certificates, in inverse order of their numerical
designation, and then to the related Senior Certificates, on a pro rata
basis. Upon deposit of the required repurchase price and following such final
Distribution Date for the related Certificates, the Trustee shall release
promptly (or cause the Custodian to release) to EMC and/or its designee the
Mortgage Files for the remaining applicable Mortgage Loans, and the Accounts
with respect thereto shall terminate, subject to the Securities
Administrator's obligation to hold any amounts payable to the related
Certificateholders in trust without interest pending final distributions
pursuant to Section 10.01(g). After final distributions pursuant to
Section 10.01(g) to all Certificateholders, any other amounts remaining in
the Accounts will belong to the Depositor.
(f) In the event that this Agreement is terminated by reason of the payment
or liquidation of all Mortgage Loans or the disposition of all property
acquired with respect to all Mortgage Loans under Section 10.01(a)(ii) above,
the Master Servicer shall deliver to the Securities Administrator for deposit
in the Distribution Account all distributable amounts remaining in the Master
Servicer Collection Account. Upon the presentation and surrender of the
Certificates, the Securities Administrator shall distribute to the remaining
Certificateholders, in accordance with their respective interests, all
distributable amounts remaining in the Distribution Account. Upon deposit by
the Master Servicer of such distributable amounts, and following such final
Distribution Date, the Trustee shall release (or shall instruct the
Custodian, as its agent, to release) promptly to the Depositor or its
designee the Mortgage Files for the remaining Mortgage Loans, and the Master
Servicer Collection Account and the Distribution Account shall terminate,
subject to the Securities Administrator's obligation to hold any amounts
payable to the Certificateholders in trust without interest pending final
distributions pursuant to this Section 10.01(f).
(g) If not all of the Certificateholders shall surrender their Certificates
for cancellation within six months after the time specified in the
above-mentioned written notice, the Securities Administrator shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice, not all the
Certificates shall have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or appoint any agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the funds and other assets which remain subject to this Agreement.
Section 10.02 Additional Termination Requirements. (a) If the option of the
Depositor to repurchase all the Mortgage Loans under Section 10.01(a)(i)
above is exercised, the Trust Fund and each 2005-9 REMIC shall be terminated
in accordance with the following additional requirements, unless the Trustee
has been furnished with an Opinion of Counsel addressed to the Trustee to the
effect that the failure of the Trust to comply with the requirements of this
Section 10.02 will not (i) result in the imposition of taxes on "prohibited
transactions" as defined in Section 860F of the Code on each 2005-9 REMIC or
(ii) cause any 2005-9 REMIC to fail to qualify as a 2005-9 REMIC at any time
that any Regular Certificates are outstanding:
(i) within 90 days prior to the final Distribution Date, at the written
direction of Depositor, the Securities Administrator, as agent for the
respective Tax Matters Persons, shall adopt a plan of complete
liquidation of each 2005-9 REMIC in the case of a termination under
Section 10.01(a)(i). Such plan, which shall be provided to the
Securities Administrator by the Depositor, shall meet the requirements
of a "qualified liquidation" under Section 860F of the Code and any
regulations thereunder.
(ii) the Depositor shall notify the Trustee and the Securities Administrator
at the commencement of such 90-day liquidation period and, at or prior
to the time of making of the final payment on the Certificates, the
Securities Administrator shall sell or otherwise dispose of all of the
remaining assets of the Trust Fund in accordance with the terms hereof;
and
(iii) at or after the time of adoption of such a plan of complete liquidation
of any 2005-9 REMIC and at or prior to the final Distribution Date, the
Securities Administrator shall sell for cash all of the assets of the
Trust to or at the direction of the Depositor, and each 2005-9 REMIC,
shall terminate at such time.
(b) By their acceptance of the Residual Certificates, the Holders thereof
hereby (i) agree to adopt such a plan of complete liquidation of the related
2005-9 REMIC upon the written request of the Depositor, and to take such
action in connection therewith as may be reasonably requested by the
Depositor and (ii) appoint the Depositor as their attorney-in-fact, with full
power of substitution, for purposes of adopting such a plan of complete
liquidation. The Trustee shall adopt such plan of liquidation by filing the
appropriate statement on the final tax return of each 2005-9 REMIC. Upon
complete liquidation or final distribution of all of the assets of the Trust
Fund, the Trust Fund and each 2005-9 REMIC shall terminate.
ARTICLE XI
Miscellaneous Provisions
Section 11.01 Intent of Parties. The parties intend that each 2005-9 REMIC
shall be treated as a REMIC for federal income tax purposes and that the
provisions of this Agreement should be construed in furtherance of this
intent. Notwithstanding any other express or implied agreement to the
contrary, the Seller, the Master Servicer, the Securities Administrator, the
Depositor, the Trustee, each recipient of the related Prospectus Supplement
and, by its acceptance thereof, each holder of a Certificate, agrees and
acknowledges that each party hereto has agreed that each of them and their
employees, representatives and other agents may disclose, immediately upon
commencement of discussions, to any and all persons the tax treatment and tax
structure of the Certificates and the 2005-9 REMICs, the transactions
described herein and all materials of any kind (including opinions and other
tax analyses) that are provided to any of them relating to such tax treatment
and tax structure except where confidentiality is reasonably necessary to
comply with the securities laws of any applicable jurisdiction. For purposes
of this paragraph, the terms "tax treatment" and "tax structure" have the
meanings set forth in Treasury Regulation Sections 1.6011-4(c), 301.6111-2(c)
and 301.6112-1(d).
Section 11.02 Amendment.
(a) This Agreement may be amended from time to time by the Company, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
without notice to or the consent of any of the Certificateholders, to (i)
cure any ambiguity, (ii) correct or supplement any provisions herein that may
be defective or inconsistent with any other provisions herein, (iii) conform
any provisions herein to the provisions in the Prospectus, (iv) comply with
any changes in the Code or (v) make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement; provided, however, that
with respect to clauses (iv) and (v) of this Section 11.02(a), such action
shall not, as evidenced by an Opinion of Independent Counsel, addressed to
the Trustee, adversely affect in any material respect the interests of any
Certificateholder.
(b) This Agreement may also be amended from time to time by the Company, the
Master Servicer, the Depositor, the Securities Administrator and the Trustee,
with the consent of the Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than 51% of the Trust Fund or of the
applicable Class or Classes, if such amendment affects only such Class or
Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying
in any manner the rights of the Certificateholders; provided, however, that
no such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders
of which are required to consent to any such amendment, without the consent
of the Holders of all Certificates then outstanding, or (iii) cause any
2005-9 REMIC to fail to qualify as a REMIC for federal income tax purposes,
as evidenced by an Opinion of Independent Counsel addressed to the Trustee
which shall be provided to the Trustee other than at the Trustee's expense.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.02(b),
Certificates registered in the name of or held for the benefit of the
Depositor, the Securities Administrator, the Master Servicer, or the Trustee
or any Affiliate thereof shall be entitled to vote their Fractional Undivided
Interests with respect to matters affecting such Certificates.
(c) Promptly after the execution of any such amendment, the Securities
Administrator shall furnish a copy of such amendment or written notification
of the substance of such amendment to each Certificateholder and the Trustee,
and the Trustee shall then provide a copy of such amendment or notice to the
Rating Agencies.
(d) In the case of an amendment under Section 11.02(b) above, it shall not be
necessary for the Certificateholders to approve the particular form of such
an amendment. Rather, it shall be sufficient if the Certificateholders
approve the substance of the amendment. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Securities Administrator may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the Trustee
and the Securities Administrator shall be entitled to receive and rely upon
an Opinion of Counsel addressed to the Trustee and the Securities
Administrator stating that the execution of such amendment is authorized or
permitted by this Agreement. The Trustee and the Securities Administrator
may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's or the Securities Administrator's own respective
rights, duties or immunities under this Agreement.
Section 11.03 Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other
comparable jurisdictions in which any or all of the Mortgaged Properties are
situated, and in any other appropriate public recording office or elsewhere.
The Depositor shall effect such recordation, at the expense of the Trust upon
the request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the
Certificateholders or is required by law.
Section 11.04 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to establish the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholders be under any liability to any third Person by reason of
any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at
law upon, under or with respect to this Agreement against the Depositor, the
Securities Administrator, the Master Servicer or any successor to any such
parties unless (i) such Certificateholder previously shall have given to the
Securities Administrator a written notice of a continuing default, as herein
provided, (ii) the Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs and expenses
and liabilities to be incurred therein or thereby, and (iii) the Trustee, for
60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding.
(d) No one or more Certificateholders shall have any right by virtue of any
provision of this Agreement to affect the rights of any other
Certificateholders or to obtain or seek to obtain priority or preference over
any other such Certificateholder, or to enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.04, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 11.05 Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders
in person or by an agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Securities Administrator and,
where it is expressly required, to the Depositor. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Securities
Administrator and the Depositor, if made in the manner provided in this
Section 11.05.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. The fact and date of the execution
of any such instrument or writing, or the authority of the individual
executing the same, may also be proved in any other manner which the
Securities Administrator deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of ownership
or other writing on such Certificates, except an endorsement in accordance
with Section 5.02 made on a Certificate presented in accordance with
Section 5.04) shall be proved by the Certificate Register, and neither the
Trustee, the Securities Administrator, the Depositor, the Master Servicer nor
any successor to any such parties shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver or
other action of the holder of any Certificate shall bind every future holder
of the same Certificate and the holder of every Certificate issued upon the
registration of transfer or exchange thereof, if applicable, or in lieu
thereof with respect to anything done, omitted or suffered to be done by the
Trustee, the Securities Administrator, the Depositor, the Master Servicer or
any successor to any such party in reliance thereon, whether or not notation
of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Fractional Undivided Interests have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Certificates owned by the Trustee, the Securities Administrator,
the Depositor, the Master Servicer or any Affiliate thereof shall be
disregarded, except as otherwise provided in Section 11.02(b) and except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Certificates which have been
pledged in good faith to the Trustee, the Securities Administrator, the
Depositor, the Master Servicer or any Affiliate thereof may be regarded as
outstanding if the pledgor establishes to the satisfaction of the Trustee the
pledgor's right to act with respect to such Certificates and that the pledgor
is not an Affiliate of the Trustee, the Securities Administrator, the
Depositor, or the Master Servicer, as the case may be.
Section 11.06 Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS RULES (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW, WHICH THE PARTIES HERETO EXPRESSLY RELY UPON IN THE
CHOICE OF SUCH LAW AS THE GOVERNING LAW HEREUNDER) AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.07 Notices. All demands and notices hereunder shall be in writing
and shall be deemed given when delivered at (including delivery by facsimile)
or mailed by registered mail, return receipt requested, postage prepaid, or
by recognized overnight courier, to (i) in the case of the Depositor, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Vice
President-Servicing, telecopier number: (000) 000-0000, or to such other
address as may hereafter be furnished to the other parties hereto in writing;
(ii) in the case of the Trustee, at its Corporate Trust Office, or such other
address as may hereafter be furnished to the other parties hereto in writing;
(iii) in the case of the Company, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Vice President-Servicing, telecopier number: (212)
272-5591, or to such other address as may hereafter be furnished to the other
parties hereto in writing; (iv) in the case of the Master Servicer or
Securities Administrator, Xxxxx Fargo Bank, National Association, X.X. Xxx
00, Xxxxxxxx Xxxxxxxx 00000 (or, in the case of overnight deliveries, 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 21045) (Attention: Corporate Trust
Services - BSALTA 2005-9), facsimile no.: (000) 000-0000, or such other
address as may hereafter be furnished to the other parties hereto in writing;
or (v) in the case of the Rating Agencies, Xxxxx'x Investors Service, Inc.,
00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Standard & Poor's, a division
of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. Any notice delivered to the Depositor, the Master Servicer, the
Securities Administrator or the Trustee under this Agreement shall be
effective only upon receipt. Any notice required or permitted to be mailed
to a Certificateholder, unless otherwise provided herein, shall be given by
first-class mail, postage prepaid, at the address of such Certificateholder
as shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given when mailed, whether or not the Certificateholder receives such notice.
Section 11.08 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severed from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the holders thereof.
Section 11.09 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 11.10 Article and Section Headings. The article and section headings
herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.11 Counterparts. This Agreement may be executed in two or more
counterparts each of which when so executed and delivered shall be an
original but all of which together shall constitute one and the same
instrument.
Section 11.12 Notice to Rating Agencies. The article and section headings
herein are for convenience of reference only, and shall not limited or
otherwise affect the meaning hereof. The Trustee shall promptly provide
notice to each Rating Agency with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
1. Any material change or amendment to this Agreement or the
Servicing Agreements;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer, the
Trustee or the Securities Administrator;
4. The repurchase or substitution of any Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Master Servicer Collection
Account or the Distribution Account.
[PSA]
IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer and
the Securities Administrator have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year
first above written.
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as Depositor
By: /s/ Xxxxx Xxxxxxxxxxx
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Managing Director
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Securities
Administrator
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
EMC MORTGAGE CORPORATION
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title:
Accepted and Agreed as to
Sections 2.01, 2.02, 2.03, 2.04 and 9.09(c)
in its capacity as Seller
EMC MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of September, 2005, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxxxxxxxx, known to me to be a
Vice President of Structured Asset Mortgage Investments II Inc., the
corporation that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxxxxx
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of September, 2005, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxx, known to me to be an Assistant
Vice President of JPMorgan Chase Bank, National Association, the entity that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxxx
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
) ss.:
CITY OF BALTIMORE )
On the 30th day of September, 2005, before me, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxxx, known to me to be an
Assistant Vice President of Xxxxx Fargo Bank, National Association, the
entity that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxxx
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
) ss.:
CITY OF BALTIMORE )
On the 30th day of September, 2005, before me, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxxx, known to me to be an
Assistant Vice President of Xxxxx Fargo Bank, National Association, the
entity that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxxx
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 30th day of September, 2005, before me, a notary public in and
for said State, personally appeared Xxxx Xxxxxxx, known to me to be
Vice President of EMC Mortgage Corporation, the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxx
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 30th day of September, 2005, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxx, known to me to be
Vice President of EMC Mortgage Corporation, the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxx
Notary Public
[Notarial Seal]
I-4
APPENDIX 1
Class Y Principal Reduction Amounts: For any Distribution Date
the amounts by which the principal balances of the Class Y-1, Class Y-2,
Class Y-3, Class Y-4, Class Y-5 and Class Y-6 Certificates respectively will
be reduced on such distribution date by the allocation of Realized Losses and
the distribution of principal, determined as follows:
First for each of Group I, Group II, Group III, Group IV, Group V and Group
VI determine the weighted average pass-through rate for that Group for
distributions of interest that will be made on the next succeeding
Distribution Date (the "Group Interest Rate"). The Principal Reduction
Amount for each of the Class Y Certificates will be determined pursuant to
the "Generic solution for the Class Y Principal Reduction Amounts" set forth
below (the "Generic Solution") by making identifications among the actual
Groups and their related Class Y and Class Z Certificates and weighted
average pass-through rates and the Groups named in the Generic Solution and
their related Class Y and Class Z Certificates as follows:
A. Determine which Group has the lowest Group Interest Rate. That Group
will be identified with Group AA and the Class Y and Class Z Certificates
related to that Group will be respectively identified with the Class YAA and
Class ZAA Certificates. 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 F of this definition.
B. Determine which Group has the second lowest Group Interest Rate. That
Group will be identified with Group BB and the Class Y and Class Z
Certificates related to that Group will be respectively identified with the
Class BB and Class ZBB Certificates. 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 F of this definition.
C. Determine which Group has the third lowest Group Interest Rate. That
Group will be identified with Group CC and the Class Y and Class Z
Certificates related to that Group will be respectively identified with the
Class YCC and Class ZCC Certificates. 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 F of this definition.
D. Determine which Group has the fourth lowest Group Interest Rate. That
Group will be identified with Group DD and the Class Y and Class Z
Certificates related to that Group will be respectively identified with the
Class YDD and Class ZDD Certificates. 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 F of this definition.
E. Determine which Group has the fifth lowest Group Interest Rate. That
Group will be identified with Group EE and the Class Y and Class Z
Certificates related to that Group will be respectively identified with the
Class XXX and Class ZEE Certificates. The Group Interest Rate for that Group
will be identified with N%. If two or more Groups have the fifth 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 F of this definition.
F. Determine which Group has the highest Group Interest Rate. That Group
will be identified with Group FF and the Class Y and Class Z Certificates
related to that Group will be respectively identified with the Class YFF and
Class ZFF Certificates. The Group Interest Rate for that Group will be
identified with O%. If two or more Groups have the highest 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 F of this definition.
Second, apply the Generic Solution set forth below to determine the Class Y
Principal Reduction Amounts for the Distribution Date using the
identifications made above.
Generic Solution for the Class Y Principal Reduction Amounts:
For any Distribution Date, the amounts by which the principal balances of the
Class YAA, Class YBB, Class YCC, Class YDD, Class XXX, Class YFF, Class YGG
and Class YHH Certificates 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 pass-through rate on the Group AA mortgage loans
for interest to be distributed on the next succeeding Distribution Date.
K% = the weighted average pass-through rate on the Group BB mortgage loans
for interest to be distributed on the next succeeding Distribution Date.
L% = the weighted average pass-through rate on the Group CC mortgage loans
for interest to be distributed on the next succeeding Distribution Date.
M% = the weighted average pass-through rate on the Group DD mortgage loans
for interest to be distributed on the next succeeding Distribution Date.
N% = the weighted average pass-through rate on the Group EE mortgage loans
for interest to be distributed on the next succeeding Distribution Date.
O% = the weighted average pass-through rate on the Group FF mortgage loans
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%<=N%<=O%.
PJB = the Group AA Subordinate Amount after the allocation of Realized
Losses and distributions of principal on such Distribution Date.
PKB = the Group BB Subordinate Amount after the allocation of Realized
Losses and distributions of principal on such Distribution Date.
PLB = the Group CC Subordinate Amount after the allocation of Realized Losses
and distributions of principal on such Distribution Date.
PMB = the Group DD Subordinate Amount after the allocation of Realized
Losses and distributions of principal on such Distribution Date.
PNB = the Group EE Subordinate Amount after the allocation of Realized
Losses and distributions of principal on such Distribution Date.
POB = the Group FF Subordinate Amount after the allocation of Realized
Losses and distributions of principal on such Distribution Date.
R = the Class CB Pass Through Rate
= (J%PJB + K%PKB + L%PLB + M%PMB + N%PNB + O%POB )/
(PJB + PKB + PLB + PMB + PNB + POB)
R11 = the weighted average of the Group AA, Group BB, Group CC, Group DD and
Group EE Pass-Through Rates after giving effect to the allocation of
Realized Losses and distributions of principal to be made on such
Distribution Date
=
{J% (Pj - ΔPj) + K% (Pk - ΔPk) + L% (Pl - ΔPl) + M% (Pm - ΔPm) + N% (Pn - ΔPn) }/
(Pj - ΔPj + Pk - ΔPk + Pl - ΔPl + Pm - ΔPm + Pn - ΔPn)
R12 = the Group FF Pass-Through Rate
= O%
R21 = the weighted average of the Group AA, Group BB, Group CC and Group DD
Pass-Through Rates after giving effect to the allocation of Realized
Losses and distributions of principal to be made on such Distribution
Date
=
{J% (Pj - ΔPj) + K% (Pk - ΔPk) + L% (Pl - ΔPl) + M% (Pm - ΔPm) }/
(Pj - ΔPj + Pk - ΔPk + Pl - ΔPl + Pm - ΔPm)
R22 = the weighted average of the Group EE and Group FF Pass-Through Rates
= {N% (Pn - ΔPn) + O%
(Po - ΔPo)}/(Pn - ΔPn + Po - ΔPo)
R31 = the weighted average of the Group AA, Group BB and Group CC
Pass-Through Rates after giving effect to the allocation of Realized
Losses and distributions of principal to be made on such Distribution
Date
=
{(J% (Pj - ΔPj) + K% (Pk - ΔPk) + L% (Pl - ΔPl) }/
(Pj - ΔPj + Pk - ΔPk + Pl - ΔPl)
R32 = the weighted average of the Group DD, Group EE and Group FF
Pass-Through Rates after giving effect to the allocation of Realized
Losses and distributions of principal to be made on such Distribution
Date
=
{ M% (Pm - ΔPm) + N% (Pn - ΔPn) + O% (Po - ΔPo)}/( Pm - ΔPm + Pn - ΔPn + Po - ΔPo )
R41 = the weighted average of the Group AA and Group BB Pass-Through Rates
after giving effect to the allocation of Realized Losses and
distributions of principal to be made on such Distribution Date
= {J% (Pj - ΔPj) + K% (Pk - ΔPk) }/
(Pj - ΔPj + Pk - ΔPk )
R42 = the weighted average of the Group CC, Group DD, Group EE and Group FF
Pass-Through Rates after giving effect to the allocation of Realized
Losses and distributions of principal to be made on such Distribution
Date
=
{ N% (Pn - ΔPn) + O% (Po - ΔPo) + L% (Pl - ΔPl) + M% (Pm - ΔPm)}/
( Pn - ΔPn + Po - ΔPo + Pl - ΔPl + Pm - ΔPm )
R51 = the Group AA Pass-Through Rate after giving effect to the allocation of
Realized Losses and distributions of principal to be made on such
Distribution Date
= J%
R52 = the weighted average of the Group BB, Group CC, Group DD, Group EE and
Group FF Pass-Through Rates after giving effect to the allocation of
Realized Losses and distributions of principal to be made on such
Distribution Date
=
{ M% (Pm - ΔPm) + N% (Pn - ΔPn) + O% (Po - ΔPo) + K% (Pk - ΔPk) + L% (Pl - ΔPl)}/
( Pm - ΔPm + Pn - ΔPn + Po - ΔPo + Pk - ΔPk + Pl - ΔPl )
r11 = the weighted average of the Class YAA, Class YBB, Class YCC, Class YDD
and Class XXX Pass-Through Rates
= (J% Yj + K% Yk + L% Yl + M% Ym + N% Yn )/
(Yj + Yk + Yl + Ym + Yn)
r12 = the Class YFF Pass-Through Rate
= O%
r21 = the weighted average of the Class YAA, Class YBB, Class YCC and Class
YDD Pass-Through Rates
= (J% Yj + K% Yk + L% Yl + M% Ym )/(Yj + Yk + Yl + Ym )
r22 = the weighted average of the Class XXX and Class YFF Pass-Through Rates
= ( N% Yn + O% Yo )/( Yn + Yo )
r31 = the weighted average of the Class YAA, Class YBB and Class YCC
Pass-Through Rates
= (J% Yj + K% Yk + L% Yl )/(Yj + Yk + Yl )
r32 = the weighted average of the Class YDD, Class XXX and Class YFF
Pass-Through Rates
= ( O% Yo + M% Ym + N% Yn )/( Yo + Ym + Yn )
r41 = the weighted average of the Class YAA and Class YBB Pass-Through Rates
= (J% Yj + K% Yk )/(Yj + Yk )
r42 = the weighted average of the Class YCC, Class YDD, Class XXX and Class
YFF Pass-Through Rates
= ( N% Yn + O% Yo + L% Yl + M% Ym )/( Yn + Yo + Yl + Ym )
r51 = the Class YAA
= J%
r52 = the weighted average of the Class YBB, Class YCC, Class YDD, Class XXX
and Class YFF Pass-Through Rates
=
( M% Ym + N% Yn + O% Yo + K% Yk + L% Yl )/( Ym + Yn + Yo + Yk + Yl )
Yj = the principal balance of the Class YAA Certificates after distributions
on the prior Distribution Date.
Yk = the principal balance of the Class YBB Certificates after distributions
on the prior Distribution Date.
Yl = the principal balance of the Class YCC Certificates after distributions
on the prior Distribution Date.
Ym = the principal balance of the Class YDD Certificates after distributions
on the prior Distribution Date.
Yn = the principal balance of the Class XXX Certificates after distributions
on the prior Distribution Date.
Yo = the principal balance of the Class YFF Certificates after distributions
on the prior Distribution Date.
ΔYj = the Class YAA Principal Reduction Amount.
ΔYk = the Class YBB Principal Reduction Amount.
ΔYl = the Class YCC Principal Reduction Amount.
ΔYm = the Class YDD Principal Reduction Amount.
ΔYn = the Class XXX Principal Reduction Amount.
ΔYo = the Class YFF Principal Reduction Amount.
Zj = the principal balance of the Class ZAA Certificates after distributions
on the prior Distribution Date.
Zk = the principal balance of the Class ZBB Certificates after distributions
on the prior Distribution Date.
Zl = the principal balance of the Class ZCC Certificates after distributions
on the prior Distribution Date.
Zm = the principal balance of the Class ZDD Certificates after distributions
on the prior Distribution Date.
Zn = the principal balance of the Class ZEE Certificates after distributions
on the prior Distribution Date.
Zo = the principal balance of the Class ZFF Certificates after distributions
on the prior Distribution Date.
ΔZj = the Class ZAA Principal Reduction Amount.
ΔZk = the Class ZBB Principal Reduction Amount.
ΔZl = the Class ZCC Principal Reduction Amount.
ΔZm = the Class ZDD Principal Reduction Amount.
ΔZn = the Class ZEE Principal Reduction Amount.
ΔZo = the Class ZFF Principal Reduction Amount.
Pj = the aggregate principal balance of the Class YAA and Class ZAA
Certificates after distributions on the prior Distribution Date.
= Yj + Zj
Pk = the aggregate principal balance of the Class YBB and Class ZBB
Certificates after distributions on the prior Distribution Date.
= Yk + Zk
Pl = the aggregate principal balance of the Class YCC and Class ZCC
Certificates after distributions on the prior Distribution Date.
= Yl + Zl =
Pm = the aggregate principal balance of the Class YAA and Class ZAA
Certificates after distributions on the prior Distribution Date.
= Ym + Zm
Pn = the aggregate principal balance of the Class YAA and Class ZAA
Certificates after distributions on the prior Distribution Date.
= Yn + Zn
Po = the aggregate principal balance of the Class YAA and Class ZAA
Certificates after distributions on the prior Distribution Date.
= Yo + Zo
ΔPj = the aggregate amount of principal reduction occurring with
respect to the Group AA mortgage loans from Realized Losses or payments
of principal to be allocated on such Distribution Date net of any such
amounts allocated to the Class R-I Certificate or to any class of
principal only certificates created by ratio stripping the mortgage
loans of Group AA
= the aggregate of the Class YAA and Class ZAA Principal Reduction
Amounts.
= ΔYj + ΔZj
ΔPk = the aggregate amount of principal reduction occurring with
respect to the Group BB mortgage loans from Realized Losses or payments
of principal to be allocated on such Distribution Date net of any such
amounts allocated to the Class R-I Certificate or to any class of
principal only certificates created by ratio stripping the mortgage
loans of Group BB
= the aggregate of the Class YBB and Class ZBB Principal Reduction
Amounts.
= ΔYk + ΔZk
ΔPl= the aggregate amount of principal reduction occurring with
respect to the Group CC mortgage loans from Realized Losses or payments
of principal to be allocated on such Distribution Date net of any such
amounts allocated to the Class R-I Certificate or to any class of
principal only certificates created by ratio stripping the mortgage
loans of Group CC
= the aggregate of the Class YCC and Class ZCC Principal Reduction
Amounts.
= ΔYl + ΔZl
ΔPm = the aggregate amount of principal reduction occurring with
respect to the Group DD mortgage loans from Realized Losses or payments
of principal to be allocated on such Distribution Date net of any such
amounts allocated to the Class R-I Certificate or to any class of
principal only certificates created by ratio stripping the mortgage
loans of Group DD
= the aggregate of the Class YDD and Class ZDD Principal Reduction
Amounts.
= ΔYm + ΔZm
ΔPn = the aggregate amount of principal reduction occurring with
respect to the Group EE mortgage loans from Realized Losses or payments
of principal to be allocated on such Distribution Date net of any such
amounts allocated to the Class R-I Certificate or to any class of
principal only certificates created by ratio stripping the mortgage
loans of Group EE
= the aggregate of the Class XXX and Class ZEE Principal Reduction
Amounts.
= ΔYn + ΔZn
ΔPo = the aggregate amount of principal reduction occurring with
respect to the Group FF mortgage loans from Realized Losses or payments
of principal to be allocated on such Distribution Date net of any such
amounts allocated to the Class R-I Certificate or to any class of
principal only certificates created by ratio stripping the mortgage
loans of Group FF
= the aggregate of the Class YFF and Class ZFF Principal Reduction
Amounts.
= ΔYo + ΔZo
α = .0005
γ1 = (R - R11)/(R12 - R). If R=>N%, γ1 is a non-negative number
unless its denominator is zero, in which event it is undefined.
γ2 = (R - R21)/(R22 - R). If R=>M%, γ2 is a non-negative number
unless its denominator is zero, in which event it is undefined.
γ3 = (R - R31)/(R32 - R). If R=>L%, γ3 is a non-negative number
unless its denominator is zero, in which event it is undefined.
γ4 = (R - R41)/(R42 - R). If R=>K%, γ4 is a non-negative number
unless its denominator is zero, in which event it is undefined.
γ5 = (R - R51)/(R52 - R). If R<K%, γ5 is a non-negative number.
If γ1 is undefined, ΔYj = Yj, ΔYk = Yk, ΔYl = Yl,
ΔYm = Ym, ΔYn = Yn, and ΔYo = (Yo/Po)ΔPo
If γ5 is zero, ΔYj = (Yj/Pj)ΔPj, ΔYk = Yk, ΔYl
= Yl, ΔYm = Ym, ΔYn = Yn, and ΔYo = Yo
In the remaining situations, ΔYj, ΔYk, ΔYl, ΔYm,
ΔYn, and ΔYo shall be defined as follows:
I. If R=>N%, make the following additional definitions:
δ1Yj = 0, if R11< r11;
Yj if R11=> r11 and
R11=>N%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yj/
{(R11 - J%)Yj + (R11 - K%)Yk + (R11 - L%)Yl +
(R11 - M%)Ym }, if R11=> r11 and
N%>R11=>M%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yj/
{(R11 - J%)Yj + (R11 - K%)Yk + (R11 - L%)Yl }, if R11=>
r11 and M%>R11=>L%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yj/
{(R11 - J%)Yj + (R11 - K%)Yk }, if R11=>
r11 and L%>R11=>K%; and
(R11- r11)( Yj + Yk + Yl + Ym + Yn )/(R11 - J%), if
R11=> r11 and K%>R11=>J%.
δ1Yk = 0, if R11< r11
and R11=>K%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yk/
{ (R11 - K%)Yk + (R11 - L%)Yl + (R11 - M%)Ym +
(R11 - N%)Yn }, if R11< r11 and R11<K%;
Yk if R11=> r11 and
R11=>N%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yk/
{(R11 - J%)Yj + (R11 - K%)Yk + (R11 - L%)Yl +
(R11 - M%)Ym }, if R11=> r11 and
N%>R11=>M%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yk/
{(R11 - J%)Yj + (R11 - K%)Yk + (R11 - L%)Yl }, if R11=>
r11 and M%>R11=>L%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yk/
{(R11 - J%)Yj + (R11 - K%)Yk }, if R11=>
r11 and L%>R11=>K%; and
0, if R11=> r11 and R11<K%.
δ1Yl = 0, if R11< r11
and R11=>L%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn)Yl/
{ (R11 - L%)Yl + (R11 - M%)Ym + (R11 - N%)Yn }, if R11< r11
and K%<=R11<L%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yl/
{ (R11 - K%)Yk + (R11 - L%)Yl + (R11 - M%)Ym +
(R11 - N%)Yn }, if R11< r11 and
R11<K%;
Yl if R11=> r11 and
R11=>N%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yl/
{(R11 - J%)Yj + (R11 - K%)Yk + (R11 - L%)Yl +
(R11 - M%)Ym }, if R11=> r11 and
N%>R11=>M%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yl/
{(R11 - J%)Yj + (R11 - K%)Yk + (R11 - L%)Yl }, if R11=>
r11 and M%>R11=>L%;
0, if R11=> r11 and R11<L%.
δ1Ym = 0, if R11< r11
and R11=>M%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Ym/
{ (R11 - M%)Ym + (R11 - N%)Yn }, if R11< r11
and L%<=R11<M%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Ym/
{ (R11 - L%)Yl + (R11 - M%)Ym + (R11 - N%)Yn }, if R11< r11
and K%<=R11<L%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Ym/
{ (R11 - K%)Yk + (R11 - L%)Yl + (R11 - M%)Ym +
(R11 - N%)Yn }, if R11< r11 and
R11<K%;
Ym if R11=> r11 and
R11=>N%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Ym/
{(R11 - J%)Yj + (R11 - K%)Yk + (R11 - L%)Yl +
(R11 - M%)Ym }, if R11=> r11 and
N%>R11=>M%;
0, if R11=> r11 and R11<M%.
δ1Yn = 0, if R11< r11
and R11=>N%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )/
{ (R11 - N%)}, if R11< r11 and
M%<=R11<N%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yn/
{ (R11 - M%)Ym + (R11 - N%)Yn }, if R11< r11
and L%<=R11<M%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yn/
{ (R11 - L%)Yl + (R11 - M%)Ym + (R11 - N%)Yn }, if R11< r11
and K%<=R11<L%;
(R11- r11)( Yj + Yk + Yl + Ym + Yn )Yn/
{ (R11 - K%)Yk + (R11 - L%)Yl + (R11 - M%)Ym +
(R11 - N%)Yn }, if R11< r11 and
R11<K%;
Yn if R11=> r11 and
R11=>N%;
0, if R11=> r11 and R11<N%.
δ1Yj, x0Xx, x0Xx, x0Xx, and δ1Yn are numbers
respectively between Yj, Yk, Yl, Ym and Yn and 0 such that
{J%(Yj - δ1Yj ) + K%( Yk.- δ1Yk) + L%( Yl.-
δ1Yl) + M%( Ym.- δ1Ym) +
N%( Yn.- δ1Yn) }/
(Yj - δ1Yj + Yk.- δ1Yk + Yl.- δ1Yl + Ym.-
δ1Ym + Yn.- δ1Yn )
= R11.
Y11 = Yj - δ1Yj + Yk.- δ1Yk + Yl.- δ1Yl + Ym.-
δ1Ym + Yn.- δ1Yn
P11 = Pj + Pk + Pl + Pm + Pn
Z11 = Zj + Zk + Zl + Zm + Zn
ΔY11 = ΔYj - δ1Yj + ΔYk.- δ1Yk +
ΔYl.- δ1Yl + ΔYm.- δ1Ym + ΔYn.-
δ1Yn
ΔP11 = ΔPj + ΔPk + ΔPl + ΔPm + ΔPn.
ΔZ11 = ΔZj + ΔZk + ΔZl + ΔZm + ΔZn.
1. If Yo - α(Po - ΔPo) => 0, Y11- α(P11 - ΔP11) =>
0, and γ1(P11 - ΔP11) < (Po - ΔPo), then
ΔYo = Yo - αγ1(P11 - ΔP11) and
ΔY11 = Y11 - α(P11 - ΔP11).
2. If Yo - α(Po - ΔPo) => 0, Y11 - α(P11 - ΔP11)
=> 0, and γ1(P11 - ΔP11) => (Po - ΔPo), then
ΔYo = Yo - α(Po - ΔPo) and
ΔY11 = Y11 - (α/γ1)(Po - ΔPo).
3. If Yo - α(Po - ΔPo) < 0, Y11 - α(P11 - ΔP11) =>
0, and Y11 - α(P11 - ΔP11) => Y11 - (Yo/γ1), then
ΔYo = Yo - αγ1(P11 - ΔP11) and
ΔY11 = Y11 - α(P11 - ΔP11).
4. If Yo - α(Po - ΔPo) < 0, Y11 - (Yo/γ1) => 0, and
Y11 - α(P11 - ΔP11) <= Y11 - (Yo/γ1), then ΔYo = 0
and ΔY11 = Y11 - (Yo/γ1).
5. If Y11 - α(P11 - ΔP11) < 0, Y11 - (Yo/γ1) < 0, and
Yo - α(Po - ΔPo) <= Yo - (γ1Y11), then
ΔYo = Yo - (γ1Y11) and ΔY11 = 0.
6. If Y11 - α(P11 - ΔP11) < 0, Yo - α(Po - ΔPo) =>
0, and Yo - α(Po - ΔPo) => Yo - (γ1Y11), then
ΔYo = Yo - α(Po - ΔPo) and
ΔY11 = Y11 - (α/γ1)(Po - ΔPo).
ΔYj = δ1Yj + [(Yj - δ1Yj )/Y11 ] ΔY11
ΔYk = δ1Yk + [(Yk - δ1Yk )/Y11 ] ΔY11
ΔYl = δ1Yl + [(Yl - δ1Yl )/Y11 ] ΔY11
ΔYm = δ1Ym + [(Ym - δ1Ym )/Y11 ] ΔY11
ΔYn = δ1Yn + [(Yn - δ1Yn )/Y11 ] ΔY11
ΔYo = δ1Yo + [(Yo - δ1Yo )/Y11 ] ΔY11
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 (Yo - ΔYo ) to (Y11 - ΔY11 ) equal to
γ1 after taking account of the allocation Realized Losses and the
distributions that will be made through the end of the Distribution
Date to which such provisions relate and assuring that the Principal
Reduction Amount for each of the Class YAA, Class YBB, Class YCC, Class
YDD, Class XXX, Class YFF, Class ZAA, Class ZBB, Class ZCC, Class ZDD,
Class ZEE and Class ZFF Certificates is greater than or equal to zero
for such Distribution Date;
2. Making the Class YAA Principal Balance less than or equal to 0.0005 of
the sum of the Class YAA and Class ZAA Principal Balances, the Class
YBB Principal Balance less than or equal to 0.0005 of the sum of the
Class YBB and Class ZBB Principal Balances, the Class YCC Principal
Balance less than or equal to 0.0005 of the sum of the Class YCC and
Class ZCC Principal Balances, the Class YDD Principal Balance less than
or equal to 0.0005 of the sum of the Class YDD and Class ZDD Principal
Balances, the Class XXX Principal Balance less than or equal to 0.0005
of the sum of the Class XXX and Class ZEE Principal Balances and the
Class YFF Principal Balance less than or equal to 0.0005 of the sum of
the Class YFF and Class ZFF 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 (Yo -
ΔYo ) and whose denominator is the sum of (Yo - ΔYo) and
(Zo - ΔZo) and (b) the fraction whose numerator is (Y11 -
ΔY11) and whose denominator is the sum of (Y11 - ΔY11) and
(Z11 - ΔZ11) 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
ClassY 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 Realized Losses to be
allocated on the related Distribution Date for the related Pool remaining
after the allocation of such Realized Losses to the related class of
ratio-strip principal only certificates, if any, and (b) the remainder of the
Available Distribution Amount for the related Pool or after reduction thereof
by the distributions to be made on such Distribution Date (i) to the related
class of ratio-strip principal only certificates, if any, (ii) to the related
class of ratio-strip interest only certificates, if any, and (iii) in respect
of interest on the related Class Y and Class Z Certificates, 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 ΔY11
among ΔYj, ΔYk, ΔYl, ΔYm and ΔYn cannot be
achieved because one or more of ΔYj, ΔYk, ΔYl, ΔYm,
and ΔYn, as so defined is greater than the related one of ΔPj,
ΔPk, ΔPl, ΔPm and ΔPn, such an allocation shall be
made as close as possible to the formula allocation within the requirement
that ΔYj < ΔPj, ΔYk < ΔPk, ΔYl < ΔPl,
ΔYm < ΔPm and ΔYn < ΔPn.
II. If M%<=R<=N%, make the following additional definitions:
δ2Yj = 0, if R21< r21;
Yj if R21=> r21 and
R21=>M%;
(R21- r21)( Yj + Yk + Yl + Ym )Yj/
{(R21 - J%)Yj + (R21 - K%)Yk + (R21 - L%)Yl }, if R21=>
r21 and M%>R21=>L%;
(R21- r21)( Yj + Yk + Yl + Ym )Yj/
{(R21 - J%)Yj + (R21 - K%)Yk }, if R21=>
r21 and L%>R21=>K%; and
(R21- r21)( Yj + Yk + Yl + Ym )/(R21 - J%), if
R21=> r21 and K%>R21=>J%.
δ2Yk = 0, if R21< r21
and R21=>K%;
(R21- r21)( Yj + Yk + Yl + Ym )Yk/
{ (R21 - K%)Yk + (R21 - L%)Yl + (R21 - M%)Ym }, if R21< r21
and R21<K%;
Yk if R21=> r21 and
R21=>M%;
(R21- r21)( Yj + Yk + Yl + Ym )Yk/
{(R21 - J%)Yj + (R21 - K%)Yk + (R21 - L%)Yl }, if R21=>
r21 and M%>R21=>L%;
(R21- r21)( Yj + Yk + Yl + Ym )Yk/
{(R21 - J%)Yj + (R21 - K%)Yk }, if R21=>
r21 and L%>R21=>K%; and
0, if R21=> r21 and R21<K%.
δ2Yl = 0, if R21< r21
and R21=>L%;
(R21- r21)( Yj + Yk + Yl + Ym )Yl/
{ (R21 - L%)Yl + (R21 - M%)Ym }, if R21< r21
and K%<=R21<L%;
(R21- r21)( Yj + Yk + Yl + Ym )Yl/
{ (R21 - K%)Yk + (R21 - L%)Yl + (R21 - M%)Ym }, if R21< r21
and R21<K%;
Yl if R21=> r21 and
N%>R21=>M%;
(R21- r21)( Yj + Yk + Yl + Ym )Yl/
{(R21 - J%)Yj + (R21 - K%)Yk + (R21 - L%)Yl }, if R21=>
r21 and M%>R21=>L%;
0, if R21=> r21 and R21<L%.
δ2Ym = 0, if R21< r21
and R21=>M%;
(R21- r21)( Yj + Yk + Yl + Ym )/
{ (R21 - M%) }, if R21< r21 and
L%<=R21<M%;
(R21- r21)( Yj + Yk + Yl + Ym )Ym/
{ (R21 - L%)Yl + (R21 - M%)Ym }, if R21< r21
and K%<=R21<L%;
(R21- r21)( Yj + Yk + Yl + Ym )Ym/
{ (R21 - K%)Yk + (R21 - L%)Yl + (R21 - M%)Ym }, if R21< r21
and R21<K%;
Ym if R21=> r21 and
R21=>M%;
0, if R21=> r21 and R21<M%.
δ2Yn = 0, if R22< r22;
(R22- r22)( Yn + Yo )/(R22 - N%), if R22=>
r22;
δ2Yo = (R22- r22)( Yn + Yo)/(R22 - O%),
if R22< r22;
0, if R22=> r22.
δ2Yj, x0Xx, x0Xx, x0Xx, δ2Yn, and δ2Yo,
are numbers respectively between Yj, Yk, Yl, Ym, Yn, and Yo and 0 such
that:
{J%(Yj - δ2Yj ) + K%( Yk.- δ2Yk) + L%( Yl.-
δ2Yl) + M%( Ym.- δ2Ym) + }/
(Yj - δ2Yj + Yk.- δ2Yk + Yl.- δ2Yl + Ym.-
δ2Ym )
= R21;
and
{ N%( Yn.- δ2Yn) + O%(Yo - δ2Yo ) }/(Yn.- δ2Yn
+ Yo - δ2Yo)
= R22.
Y21 = Yj - δ2Yj + Yk.- δ2Yk + Yl.- δ2Yl + Ym.-
δ2Ym
P21 = Pj + Pk + Pl + Pm
Z21 = Zj + Zk + Zl + Zm.
ΔY21 = ΔYj - δ2Yj + ΔYk.- δ2Yk +
)Yl.- δ2Yl + )Ym.- δ2Ym
ΔP21 = ΔPj + ΔPk + )Pl + )Pm
ΔZ21 = ΔZj + ΔZk + )Zl + )Zm.
Y22 = Yn.- δ2Yn + Yo - δ2Yo.
P22 = Pn + Po.
Z22 = Zn + Zo.
ΔY22 = ΔYn.- δ2Yn + ΔYo.- δ2Yo
ΔP22 = ΔPn + ΔPo.
ΔZ22 = ΔZn + )Zo.
1. If Y22 - α(P22 - ΔP22) => 0, Y21- α(P21 - ΔP21)
=> 0, and γ2(P21 - ΔP21) < (P22 - ΔP22), then
ΔY22 = Y22 - αγ2(P21 - ΔP21) and
ΔY21 = Y21 - α(P21 - ΔP21).
2. If Y22 - α(P22 - ΔP22) => 0,
Y21 - α(P21 - ΔP21) => 0, and γ2(P21 - ΔP21) =>
(P22 - ΔP22), then ΔY22 = Y22 - α(P22 - ΔP22) and
ΔY21 = Y21 - (α/γ2)(P22 - ΔP22).
3. If Y22 - α(P22 - ΔP22) < 0, Y21 - α(P21 - ΔP21)
=> 0, and Y21 - α(P21 - ΔP21) => Y21 - (Y22/γ2), then
ΔY22 = Y22 - αγ2(P21 - ΔP21) and
ΔY21 = Y21 - α(P21 - ΔP21).
4. If Y22 - α(P22 - ΔP22) < 0, Y21 - (Y22/γ2) => 0, and
Y21 - α(P21 - ΔP21) <= Y21 - (Y22/γ2), then
ΔY22 = 0 and ΔY21 = Y21 - (Y22/γ2).
5. If Y21 - α(P21 - ΔP21) < 0, Y21 - (Y22/γ2) < 0, and
Y22 - α(P22 - ΔP22) <= Y22 - (γ2Y21), then
ΔY22 = Y22 - (γ2Y21) and ΔY21 = 0.
6. If Y21 - α(P21 - ΔP21) < 0, Y22 - α(P22 - ΔP22)
=> 0, and Y22 - α(P22 - ΔP22) => Y22 - (γ2Y21), then
ΔY22 = Y22 - α(P22 - ΔP22) and
ΔY21 = Y21 - (α/γ2)(P22 - ΔP22).
ΔYj = δ2Yj + [(Yj - δ2Yj )/Y21 ] ΔY21
ΔYk = δ2Yk + [(Yk - δ2Yk )/Y21 ] ΔY21
ΔYl = δ2Yl + [(Yl - δ2Yl )/Y21 ] ΔY21
ΔYm = δ2Ym + [(Ym - δ2Ym )/Y21 ] ΔY21
ΔYn = δ2Yn + [(Yn - δ2Yn )/Y22 ] ΔY22
ΔYo = δ2Yo + [(Yo - δ2Yo )/Y22 ] ΔY22
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 (Y22 - ΔY22 ) to (Y21 - ΔY21 ) equal to
γ2 after taking account of the allocation Realized Losses and the
distributions that will be made through the end of the Distribution
Date to which such provisions relate and assuring that the Principal
Reduction Amount for each of the Class YAA, Class YBB, Class YCC, Class
YDD, Class XXX, Class YFF, Class ZAA, Class ZBB, Class ZCC, Class ZDD,
Class ZEE and Class ZFF Certificates is greater than or equal to zero
for such Distribution Date;
2. Making the Class YAA Principal Balance less than or equal to 0.0005 of
the sum of the Class YAA and Class ZAA Principal Balances, the Class
YBB Principal Balance less than or equal to 0.0005 of the sum of the
Class YBB and Class ZBB Principal Balances, the Class YCC Principal
Balance less than or equal to 0.0005 of the sum of the Class YCC and
Class ZCC Principal Balances, the Class YDD Principal Balance less than
or equal to 0.0005 of the sum of the Class YDD and Class ZDD Principal
Balances, the Class XXX Principal Balance less than or equal to 0.0005
of the sum of the Class XXX and Class ZEE Principal Balances and the
Class YFF Principal Balance less than or equal to 0.0005 of the sum of
the Class YFF and Class ZFF 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 (Y22 -
ΔY22 ) and whose denominator is the sum of (Y22 - ΔY22) and
(Z22 - ΔZ22) and (b) the fraction whose numerator is (Y21 -
ΔY21) and whose denominator is the sum of (Y21 - ΔY21) and
(Z21 - ΔZ21) 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
ClassY 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 Realized Losses to be
allocated on the related Distribution Date for the related Pool remaining
after the allocation of such Realized Losses to the related class of
ratio-strip principal only certificates, if any, and (b) the remainder of the
Available Distribution Amount for the related Pool or after reduction thereof
by the distributions to be made on such Distribution Date (i) to the related
class of ratio-strip principal only certificates, if any, (ii) to the related
class of ratio-strip interest only certificates, if any, and (iii) in respect
of interest on the related Class Y and Class Z Certificates, 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 allocations of ΔY21
among ΔYj, ΔYk, ΔYl, and ΔYm or ΔY22 among
ΔYn and ΔYo cannot be achieved because one or more of ΔYj,
ΔYk, ΔYl, ΔYm, ΔYn and ΔYo, as so defined is
greater than the related one of ΔPj, ΔPk, ΔPl, ΔPm,
ΔPn, and ΔPo such an allocation shall be made as close as
possible to the formula allocation within the requirement that ΔYj <
ΔPj, ΔYk < ΔPk, ΔYl < ΔPl, ΔYm <
ΔPm, ΔYn < ΔPn and ΔYo < ΔPo.
III. If L%<=R<=M%, make the following additional definitions:
δ3Yj = 0, if R31< r31;
Yj if R31=> r31 and
R31=>L%;
(R31- r31)( Yj + Yk + Yl )Yj/
{(R31 - J%)Yj + (R31 - K%)Yk }, if R31=>
r31 and L%>R31=>K%; and
(R31- r31)( Yj + Yk + Yl )/(R31 - J%), if R31=>
r31 and K%>R31=>J%.
δ3Yk = 0, if R31< r31
and R31=>K%;
(R31- r31)( Yj + Yk + Yl )Yk/
{ (R31 - K%)Yk + (R31 - L%)Yl }, if R31< r31
and R31<K%;
Yk if R31=> r31 and
R31=>M%;
(R31- r31)( Yj + Yk + Yl )Yk/
{(R31 - J%)Yj + (R31 - K%)Yk + (R31 - L%)Yl }, if R31=>
r31 and M%>R31=>L%;
(R31- r31)( Yj + Yk + Yl )Yk/
{(R31 - J%)Yj + (R31 - K%)Yk }, if R31=>
r31 and L%>R31=>K%; and
0, if R31=> r31 and R31<K%.
δ3Yl = 0, if R31< r31
and R31=>L%;
(R31- r31)( Yj + Yk + Yl )/
{ (R31 - L%) }, if R31< r31 and
K%<=R31<L%;
(R31- r31)( Yj + Yk + Yl )Yl/
{ (R31 - K%)Yk + (R31 - L%)Yl }, if R31< r31
and R31<K%;
Yl if R31=> r31 and
M%>R31=>L%;
0, if R31=> r31 and R31<L%.
δ3Ym = 0, if R32< r32;
(R32- r32)( Ym + Yn + Yo )Ym/{ (R32 - M%)Ym + (R32 - N%)Yn }, if
R32=> r32 and R32=>N%;
(R32- r32)( Ym + Yn + Yo )/ (R32 - M%), if R32=>
r32 and N%>R32=>M%;
δ3Yn = 0, if R32< r32
and R32=>N%;
(R32- r32)( Ym + Yn + Yo)Yn/{ (R32 - N%)Yn + (R32 - O%)Yo },
if R32< r32 and M%<=R32<N%;
(R32- r32)( Ym + Yn + Yo )Yn/{ (R32 - M%)Ym + (R32 - N%)Yn }, if
R32=> r32 and R32=>N%;
0, if R32=> r32 and R32<P%.
δ3Yo = (R32- r32)( Ym + Yn + Yo )/(R32 - O%),
if R32< r32 and P%<=R32;
(R32- r32)( Ym + Yn + Yo )Yo/{ (R32 - N%)Yn + (R32 - O%)Yo }, if
R32< r32 and M%<=R32<N%;
0, if R32=> r32.
δ3Yj, δ3Yk, δ3Yl, δ3Ym, δ3Yn and δ3Yo are
numbers respectively between Yj, Yk, Yl, Ym, Yn and Yo and 0 such that:
{J%(Yj - δ3Yj ) + K%( Yk.- δ3Yk) + L%( Yl.-
δ3Yl) )}/
(Yj - δ3Yj + Yk.- δ3Yk + Yl.- δ3Yl )
= R31;
and
{ M%( Ym.- δ3Ym) + N%( Yn.- δ3Yn) + O%(Yo -
δ3Yo ) }/( Ym.- δ3Ym + Yn.- δ3Yn + Yo - δ3Yo)
= R32.
Y31 = Yj - δ3Yj + Yk.- δ3Yk + Yl.- δ3Yl
P31 = Pj + Pk + Pl
Z31 = Zj + Zk + Zl
ΔY31 = ΔYj - δ3Yj + ΔYk.- δ3Yk +
ΔYl.- δ3Yl
ΔP31 = ΔPj + ΔPk + ΔPl .
ΔZ31 = ΔZj + ΔZk + ΔZl
Y32 = Ym.- δ3Ym + Yn.- δ3Yn + Yo - δ3Yo.
P32 = Pm + Pn + Po.
Z32 = Zm + Zn + Zo.
ΔY32 = ΔYm.- δ3Ym + ΔYn.- δ3Yn +
ΔYo.- δ3Yo
ΔP32 = ΔPm + ΔPn + ΔPo.
ΔZ32 = ΔZm + ΔZn + ΔZo.
1. If Y32 - α(P32 - ΔP32) => 0, Y31- α(P31 - ΔP31)
=> 0, and γ3(P31 - ΔP31) < (P32 - ΔP32), then
ΔY32 = Y32 - αγ3(P31 - ΔP31) and
ΔY31 = Y31 - α(P31 - ΔP31).
2. If Y32 - α(P32 - ΔP32) => 0,
Y31 - α(P31 - ΔP31) => 0, and γ3(P31 - ΔP31) =>
(P32 - ΔP32), then ΔY32 = Y32 - α(P32 - ΔP32) and
ΔY31 = Y31 - (α/γ3)(P32 - ΔP32).
3. If Y32 - α(P32 - ΔP32) < 0, Y31 - α(P31 - ΔP31)
=> 0, and Y31 - α(P31 - ΔP31) => Y31 - (Y32/γ3), then
ΔY32 = Y32 - αγ3(P31 - ΔP31) and
ΔY31 = Y31 - α(P31 - ΔP31).
4. If Y32 - α(P32 - ΔP32) < 0, Y31 - (Y32/γ3) => 0, and
Y31 - α(P31 - ΔP31) <= Y31 - (Y32/γ3), then
ΔY32 = 0 and ΔY31 = Y31 - (Y32/γ3).
5. If Y31 - α(P31 - ΔP31) < 0, Y31 - (Y32/γ3) < 0, and
Y32 - α(P32 - ΔP32) <= Y32 - (γ3Y31), then
ΔY32 = Y32 - (γ3Y31) and ΔY31 = 0.
6. If Y31 - α(P31 - ΔP31) < 0, Y32 - α(P32 - ΔP32)
=> 0, and Y32 - α(P32 - ΔP32) => Y32 - (γ3Y31), then
ΔY32 = Y32 - α(P32 - ΔP32) and
ΔY31 = Y31 - (α/γ3)(P32 - ΔP32).
ΔYj = δ3Yj + [(Yj - δ3Yj )/Y31 ] ΔY31
ΔYk = δ3Yk + [(Yk - δ3Yk )/Y31 ] ΔY31
ΔYl = δ3Yl + [(Yl - δ3Yl )/Y31 ] ΔY31
ΔYm = δ3Ym + [(Ym - δ3Ym )/Y32 ] ΔY32
ΔYn = δ3Yn + [(Yn - δ3Yn )/Y32 ] ΔY32
ΔYo = δ3Yo + [(Yo - δ3Yo )/Y32 ] ΔY32
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 (Y32 - ΔY32 ) to (Y31 - ΔY31 ) equal to
γ3 after taking account of the allocation Realized Losses and the
distributions that will be made through the end of the Distribution
Date to which such provisions relate and assuring that the Principal
Reduction Amount for each of the Class YAA, Class YBB, Class YCC, Class
YDD, Class XXX, Class YFF, Class ZAA, Class ZBB, Class ZCC, Class ZDD,
Class ZEE and Class ZFF Certificates is greater than or equal to zero
for such Distribution Date;
2. Making the Class YAA Principal Balance less than or equal to 0.0005 of
the sum of the Class YAA and Class ZAA Principal Balances, the Class
YBB Principal Balance less than or equal to 0.0005 of the sum of the
Class YBB and Class ZBB Principal Balances, the Class YCC Principal
Balance less than or equal to 0.0005 of the sum of the Class YCC and
Class ZCC Principal Balances, the Class YDD Principal Balance less than
or equal to 0.0005 of the sum of the Class YDD and Class ZDD Principal
Balances, the Class XXX Principal Balance less than or equal to 0.0005
of the sum of the Class XXX and Class ZEE Principal Balances and the
Class YFF Principal Balance less than or equal to 0.0005 of the sum of
the Class YFF and Class ZFF 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 (Y32 -
ΔY32 ) and whose denominator is the sum of (Y32 - ΔY32) and
(Z32 - ΔZ32) and (b) the fraction whose numerator is (Y31 -
ΔY31) and whose denominator is the sum of (Y31 - ΔY31) and
(Z31 - ΔZ31) 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
ClassY 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 Realized Losses to be
allocated on the related Distribution Date for the related Pool remaining
after the allocation of such Realized Losses to the related class of
ratio-strip principal only certificates, if any, and (b) the remainder of the
Available Distribution Amount for the related Pool or after reduction thereof
by the distributions to be made on such Distribution Date (i) to the related
class of ratio-strip principal only certificates, if any, (ii) to the related
class of ratio-strip interest only certificates, if any, and (iii) in respect
of interest on the related Class Y and Class Z Certificates, 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 allocations of ΔY31
among ΔYj, ΔYk and ΔYl or ΔY32 among ΔYm,
ΔYn and ΔYo cannot be achieved because one or more of ΔYj,
ΔYk, and ΔYl, ΔYm, and ΔYo, as so defined is greater
than the related one of ΔPj, ΔPk, ΔPl, ΔPm,
ΔPn, and ΔPo, such an allocation shall be made as close as
possible to the formula allocation within the requirement that ΔYj <
ΔPj, ΔYk < ΔPk, ΔYl < ΔPl, ΔYm <
ΔPm, ΔYn < ΔPn and ΔYo < ΔPo
IV. If K%<=R<=L%, make the following additional definitions:
δ4Yj = 0, if R41< r41;
Yj if R41=> r41 and
L%>R41=>K%; and
(R41- r41)( Yj + Yk )/(R41 - J%), if R41=>
r41 and K%>R41=>J%.
δ4Yk = 0, if R41< r41
and R41=>K%;
(R41- r41)( Yj + Yk )/
{ (R41 - K%) }, if R41< r41 and
R41<K%;
Yk if R41=> r41 and
L%>R41=>K%; and
0, if R41=> r41 and R41<K%.
δ4Yl = 0, if R42< r42;
(R42- r42)( Yl + Ym + Yn + Yo )Yl/
{ (R42 - L%)Yl + (R42 - M%)Ym + (R42 - N%)Yn }, if
R42=> r42 and R42=>N%;
(R42- r42)( Yl + Ym + Yn + Yo )Ym/
{ (R42 - L%)Yl + (R42 - M%)Ym }, if R42=>
r42 and N%>R42=>M%;
(R42- r42)( Yl + Ym + Yn + Yo )/(R42 - L%), if
R42=> r42 and M%>R42=>L%;
0, if R42=> r42 and R42<N%.
δ4Ym = 0, if R42< r42
and R42=>M%;
(R42- r42)( Yl + Ym + Yn + Yo )Ym/
{ (R42 - M%)Ym + (R42 - N%)Yn + (R42 - O%)Yo }, if R42< r42
and N%<=R42<M%;
(R42- r42)( Yl + Ym + Yn + Yo )Ym/
{ (R42 - L%)Yn + (R42 - M%)Ym + (R42 - N%)Yn }, if
R42=> r42 and R42=>N%;
(R42- r42)( Yl + Ym + Yn + Yo )Ym/
{ (R42 - L%)Yl + (R42 - M%)Ym}, if R42=>
r42 and N%>R42=>M%;
0, if R42=> r42 and R42<M%.
δ4Yn = 0, if R42< r42
and R42=>N%;
(R42- r42)( Yl + Ym + Yn + Yo )Yn/
{ (R42 - N%)Yn + (R42 - O%)Yo}, if R42< r42 and
M%<=R42<N%;
(R42- r42)( Yl + Ym + Yn + Yo)Yn/
{ (R42 - M%)Ym + (R42 - N%)Yp + (R42 - O%)Yo }, if R42< r42 and
L%<=R42<M%;
(R42- r42)( Yl + Ym + Yn + Yo )Yn/
{ (R42 - L%)Yl + (R42 - M%)Ym + (R42 - N%)Yn }, if R42=>
r42 and R42=>N%;
0, if R42=> r42 and R42<N%.
δ4Yo = (R42- r42)( Yl + Ym + Yn + Yo )/(R42 - O%),
if R42< r42 and N%<=R42;
(R42- r42)( Yl + Ym + Yn + Yo)Yo/
{ (R42 - N%)Yn + (R42 - O%)Yo }, if R42< r42 and
M%<=R42<N%;
(R42- r42)( Yl + Ym + Yn + Yo)Yo/
{ (R42 - M%)Ym + (R42 - N%)Yn + (R42 - O%)Yo }, if R42< r42 and
N%<=R42<O%;
0, if R42=> r42.
δ4Yj, x0Xx, x0Xx, x0Xx, and δ4Yo are numbers
respectively between Yj, Yk, Yl, Ym, Yn, and Yo and 0 such that:
{J%(Yj - δ4Yj ) + K%( Yk.- δ4Yk )}/
( Yj - δ4Yj + Yk.- δ4Yk )
= R41;
and
{ L%( Yl.- δ4Yl) + M%( Ym.- δ4Ym) + N%( Yn.-
δ4Yn) + O%(Yo - δ4Yo ) }/
(Yl.- δ4Yl + Ym.- δ4Ym + Yn.- δ4Yn + Yo -
δ4Yo)
= R42.
Y41 = Yj - δ4Yj + Yk.- δ4Yk
P41 = Pj + Pk.
Z41 = Zj + Zk.
ΔY41 = ΔYj - δ4Yj + ΔYk.- δ4Yk
ΔP41 = ΔPj + ΔPk
ΔZ41 = ΔZj + ΔZk
Y42 = Yl.- δ4Yl + Ym.- δ4Ym + Yn.- δ4Yn + Yo -
δ4Yo.
P42 = Pl + Pm + Pn + Po.
Z42 = Zl + Zm + Zn + Zo.
ΔY42 = ΔYl.- δ4Yl + ΔYm.- δ4Ym +
ΔYn.- δ4Yn + ΔYo.- δ4Yo
ΔP42 = ΔPl + ΔPm + ΔPn + ΔPo.
ΔZ42 = ΔZl + ΔZm + ΔZn + ΔZo.
1. If Y42 - α(P42 - ΔP42) => 0, Y41- α(P41 - ΔP41)
=> 0, and γ4(P41 - ΔP41) < (P42 - ΔP42), then
ΔY42 = Y42 - αγ4(P41 - ΔP41) and
ΔY41 = Y41 - α(P41 - ΔP41).
2. If Y42 - α(P42 - ΔP42) => 0,
Y41 - α(P41 - ΔP41) => 0, and γ4(P41 - ΔP41) =>
(P42 - ΔP42), then ΔY42 = Y42 - α(P42 - ΔP42) and
ΔY41 = Y41 - (α/γ4)(P42 - ΔP42).
3. If Y42 - α(P42 - ΔP42) < 0, Y41 - α(P41 - ΔP41)
=> 0, and Y41 - α(P41 - ΔP41) => Y41 - (Y42/γ4), then
ΔY42 = Y42 - αγ4(P41 - ΔP41) and
ΔY41 = Y41 - α(P41 - ΔP41).
4. If Y42 - α(P42 - ΔP42) < 0, Y41 - (Y42/γ4) => 0, and
Y41 - α(P41 - ΔP41) <= Y41 - (Y42/γ4), then
ΔY42 = 0 and ΔY41 = Y41 - (Y42/γ4).
5. If Y41 - α(P41 - ΔP41) < 0, Y41 - (Y42/γ4) < 0, and
Y42 - α(P42 - ΔP42) <= Y42 - (γ4Y41), then
ΔY42 = Y42 - (γ4Y41) and ΔY41 = 0.
6. If Y41 - α(P41 - ΔP41) < 0, Y42 - α(P42 - ΔP42)
=> 0, and Y42 - α(P42 - ΔP42) => Y42 - (γ4Y41), then
ΔY42 = Y42 - α(P42 - ΔP42) and
ΔY41 = Y41 - (α/γ4)(P42 - ΔP42).
ΔYj = δ4Yj + [(Yj - δ4Yj )/Y41 ] ΔY41
ΔYk = δ4Yk + [(Yk - δ4Yk )/Y41 ] ΔY41
ΔYl = δ4Yl + [(Yl - δ4Yl )/Y42 ] ΔY42
ΔYm = δ4Ym + [(Ym - δ4Ym )/Y42 ] ΔY42
ΔYn = δ4Yn + [(Yn - δ4Yn )/Y42 ]) Δ42
ΔYo = δ4Yo + [(Yo - δ4Yo )/Y42 ] ΔY42
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 (Y42 - ΔY42 ) to (Y41 - ΔY41 ) equal to
γ4 after taking account of the allocation Realized Losses and the
distributions that will be made through the end of the Distribution
Date to which such provisions relate and assuring that the Principal
Reduction Amount for each of the Class YAA, Class YBB, Class YCC, Class
YDD, Class XXX, Class YFF, Class ZAA, Class ZBB, Class ZCC, Class ZDD,
Class ZEE and Class ZFF Certificates is greater than or equal to zero
for such Distribution Date;
2. Making the Class YAA Principal Balance less than or equal to 0.0005 of
the sum of the Class YAA and Class ZAA Principal Balances, the Class
YBB Principal Balance less than or equal to 0.0005 of the sum of the
Class YBB and Class ZBB Principal Balances, the Class YCC Principal
Balance less than or equal to 0.0005 of the sum of the Class YCC and
Class ZCC Principal Balances, the Class YDD Principal Balance less than
or equal to 0.0005 of the sum of the Class YDD and Class ZDD Principal
Balances, the Class XXX Principal Balance less than or equal to 0.0005
of the sum of the Class XXX and Class ZEE Principal Balances and the
Class YFF Principal Balance less than or equal to 0.0005 of the sum of
the Class YFF and Class ZFF 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 (Y42 -
ΔY42 ) and whose denominator is the sum of (Y42 - ΔY42) and
(Z42 - ΔZ42) and (b) the fraction whose numerator is (Y41 -
ΔY41) and whose denominator is the sum of (Y41 - ΔY41) and
(Z41 - ΔZ41) 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
ClassY 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 Realized Losses to be
allocated on the related Distribution Date for the related Pool remaining
after the allocation of such Realized Losses to the related class of
ratio-strip principal only certificates, if any, and (b) the remainder of the
Available Distribution Amount for the related Pool or after reduction thereof
by the distributions to be made on such Distribution Date (i) to the related
class of ratio-strip principal only certificates, if any, (ii) to the related
class of ratio-strip interest only certificates, if any, and (iii) in respect
of interest on the related Class Y and Class Z Certificates, 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 allocations of ΔY41
among ΔYj, and ΔYk or ΔY42 among ΔYl, ΔYm,
ΔYn and ΔYo cannot be achieved because one or more of ΔYj,
ΔYk, ΔYl, ΔYm, ΔYn, and ΔYo,as so defined is
greater than the related one of ΔPj, ΔPk, ΔPl, ΔPm,
ΔPn, and ΔPo, such an allocation shall be made as close as
possible to the formula allocation within the requirement that ΔYj <
ΔPj, ΔYk < ΔPk, )Yl < ΔPl, ΔYm < )Pm,
ΔYn < ΔPn and ΔYo < ΔPo.
V. If R<=K%, make the following additional definitions:
δ5Yj = 0,
δ5Yk = 0, if R52< r52;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Yk/
{ (R52 - K%)Yk + (R52 - L%)Yl +
(R52 - M%)Ym + (R52 - N%)Yn }, if R52=>
r52 and R52=>N%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Yk/
{ (R52 - K%)Yk + (R52 - L%)Yl + (R52 - M%)Ym}, if R52=>
r52 and N%=>R52=>M%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Yk/
{ (R52 - K%)Yk + (R52 - L%)Yl }, if R52=>
r52 and M%>R52=>L%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )/(R52 - K%), if
R52=> r52 and N%>R52=>M%;
δ5Yl = 0, if R52< r52
and R52=>N%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo)Yl/
{ (R52 - L%)Yl + (R52 - M%)Ym +
(R52 - N%)Yn + (R52 - O%)Yo }, if R52< r52
and K%<=R52<L%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Yl/
{ (R52 - K%)Yk + (R52 - L%)Yl +
(R52 - M%)Ym + (R52 - N%)Yn }, if R52=>
r52 and R52=>N%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Yl/
{ (R52 - K%)Yk + (R52 - L%)Yl + (R52 - M%)Ym }, if
R52=> r52 and N%>R52=>M%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Yl/
{ (R52 - K%)Yk + (R52 - L%)Yl }, if R52=> r52 and
K%>R52=>L%;
0, if R52=> r52 and R52<L%.
δ5Ym = 0, if R52< r52
and R52=>O%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Ym/
{ (R52 - M%)Ym + (R52 - N%)Yn + (R52 - O%)Yo }, if R52< r52
and L%<=R52<M%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Ym
{ (R52 - L%)Yl + (R52 - M%)Ym + (R52 - N%)Yn +
(R52 - O%)Yo }, if R52< r52 and
K%<=R52<L%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Ym/
{ (R52 - K%)Yk + (R52 - L%)Yl +
(R52 - M%)Ym + (R52 - N%)Yn }, if R52=>
r52 and R52=>N%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Ym/
{ (R52 - K%)Yk + (R52 - L%)Yl + (R52 - M%)Ym}, if R52=>
r52 and N%>R52=>M%;
0, if R52=> r52 and R52<M%.
δ5Yn = 0, if R52< r52
and R52=>P%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo)Yn/
{ (R52 - N%)Yn + (R52 - O%)Yo }, if R52< r52
and M%<=R52<N%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo)Yn/
{ (R52 - M%)Ym + (R52 - N%)Yn + (R52 - O%)Yo }, if R52< r52
and L%<=R52<M%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo)Yn/
{ (R52 - L%)Yl + (R52 - M%)Ym + (R52 - N%)Yn +
(R52 - O%)Yo }, if R52< r52 and
K%<=R52<L%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo )Yn/
{ (R52 - K%)Yk + (R52 - L%)Yl +
(R52 - M%)Ym + (R52 - N%)Yn }, if R52=>
r52 and R52=>N%;
0, if R52=> r52 and R52<N%.
δ5Yo = (R52- r52)( Yk + Yl + Ym + Yn + Yo)/(R52 - O%),
if R52< r52 and N%<=R52;
(R52- r52)( Yk + Yl + Ym + Yn + Yo)Yo/
{ (R52 - N%)Yn + (R52 - O%)Yo }, if R52< r52
and M%<=R52<N%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo)Yo/
{ (R52 - M%)Ym + (R52 - N%)Yn + (R52 - O%)Yo }, if R52< r52
and L%<=R52<M%;
(R52- r52)( Yk + Yl + Ym + Yn + Yo)Yo/
{ (R52 - L%)Yl + (R52 - M%)Ym + (R52 - N%)Yn +
(R52 - O%)Yo }, if R52< r52 and
K%<=R52<L%;
0, if R52=> r52.
δ5Yj, x0Xx, x0Xx, x0Xx, δ5Yn, and δ5Yo
are numbers respectively between Yj, Yk, Yl, Ym, Yn, and Yo, and 0 such
that:
{J%(Yj - δ5Yj )}/
( Yj - δ5Yj )
= R51;
and
{ K%( Yk.- δ5Yk) + L%( Yl.- δ5Yl) + M%( Ym.-
δ5Ym) + N%( Yn.- δ5Yn) + O%(Yo - δ5Yo ) }/
(Yk.- δ5Yk + Yl.- δ5Yl + Ym.- δ5Ym + Yn.-
δ5Yn + Yo - δ5Yo)
= R52.
Y51 = Yj - δ5Yj
P51 = Pj
Z51 = Zj
ΔY51 = ΔYj - δ5Yj
ΔP51 = ΔPj
ΔZ51 = ΔZj
Y52 = Yk.- δ5Yk + Yl.- δ5Yl + Ym.- δ5Ym + Yn.-
δ5Yn + Yo - δ5Yo.
P52 = Pk + Pl + Pm + Pn + Po.
Z52 = Zk + Zl + Zm + Zn + Zo.
ΔY52 = ΔYm.- δ5Ym + ΔYn.- δ5Yn + Yo.-
δ5Yo + ΔYp.- δ5Yp + ΔYq.- δ5Yq
ΔP52 = ΔPm + ΔPn + ΔPo + ΔPp + ΔPq.
ΔZ52 = ΔZm + ΔZn + ΔZo + ΔZp + ΔZq.
1. If Y52 - α(P52 - ΔP52) => 0, Y51- α(P51 - ΔP51)
=> 0, and γ5(P51 - ΔP51) < (P52 - ΔP52), then
ΔY52 = Y52 - αγ5(P51 - ΔP51) and
ΔY51 = Y51 - α(P51 - ΔP51).
2. If Y52 - α(P52 - ΔP52) => 0,
Y51 - α(P51 - ΔP51) => 0, and γ5(P51 - ΔP51) =>
(P52 - ΔP52), then ΔY52 = Y52 - α(P52 - ΔP52) and
ΔY51 = Y51 - (α/γ5)(P52 - ΔP52).
3. If Y52 - α(P52 - ΔP52) < 0, Y51 - α(P51 - ΔP51)
=> 0, and Y51 - α(P51 - ΔP51) => Y51 - (Y52/γ5), then
ΔY52 = Y52 - αγ5(P51 - ΔP51) and
ΔY51 = Y51 - α(P51 - ΔP51).
4. If Y52 - α(P52 - ΔP52) < 0, Y51 - (Y52/γ5) => 0, and
Y51 - α(P51 - ΔP51) <= Y51 - (Y52/γ5), then
ΔY52 = 0 and ΔY51 = Y51 - (Y52/γ5).
5. If Y51 - α(P51 - ΔP51) < 0, Y51 - (Y52/γ5) < 0, and
Y52 - α(P52 - ΔP52) <= Y52 - (γ5Y51), then
ΔY52 = Y52 - (γ5Y51) and ΔY51 = 0.
6. If Y51 - α(P51 - ΔP51) < 0, Y52 - α(P52 - ΔP52)
=> 0, and Y52 - α(P52 - ΔP52) => Y52 - (γ5Y51), then
ΔY52 = Y52 - α(P52 - ΔP52) and
ΔY51 = Y51 - (α/γ5)(P52 - ΔP52).
ΔYj = Y51
ΔYk = δ5Yk + [(Yk - δ5Yk )/Y51 ] ΔY52
ΔYl = δ5Yl + [(Yl - δ5Yl )/Y51 ] ΔY52
ΔYm = δ5Ym + [(Ym - δ5Ym )/Y52 ] ΔY52
ΔYn = δ5Yn + [(Yn - δ5Yn )/Y52 ] ΔY52
ΔYo = δ5Yo + [(Yo - δ5Yo )/Y52 ] ΔY52
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 (Y52 - ΔY52 ) to (Y51 - ΔY51 ) equal
to γ5 after taking account of the allocation Realized Losses and
the distributions that will be made through the end of the Distribution
Date to which such provisions relate and assuring that the Principal
Reduction Amount for each of the Class YAA, Class YBB, Class YCC, Class
YDD, Class XXX, Class YFF, Class ZAA, Class ZBB, Class ZCC, Class ZDD,
Class ZEE and Class ZFF Certificates is greater than or equal to zero
for such Distribution Date;
2. Making the Class YAA Principal Balance less than or equal to 0.0005 of
the sum of the Class YAA and Class ZAA Principal Balances, the Class
YBB Principal Balance less than or equal to 0.0005 of the sum of the
Class YBB and Class ZBB Principal Balances, the Class YCC Principal
Balance less than or equal to 0.0005 of the sum of the Class YCC and
Class ZCC Principal Balances, the Class YDD Principal Balance less than
or equal to 0.0005 of the sum of the Class YDD and Class ZDD Principal
Balances, the Class XXX Principal Balance less than or equal to 0.0005
of the sum of the Class XXX and Class ZEE Principal Balances and the
Class YFF Principal Balance less than or equal to 0.0005 of the sum of
the Class YFF and Class ZFF 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. 1Making the larger of (a) the fraction whose numerator is (Y52 -
ΔY52 ) and whose denominator is the sum of (Y52 -ΔY52) and
(Z52 - ΔZ52) and (b) the fraction whose numerator is (Y51 -
ΔY51) and whose denominator is the sum of (Y51 - ΔY51) and
(Z51 - ΔZ51) 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
ClassY 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 Realized Losses to be
allocated on the related Distribution Date for the related Pool remaining
after the allocation of such Realized Losses to the related class of
ratio-strip principal only certificates, if any, and (b) the remainder of the
Available Distribution Amount for the related Pool or after reduction thereof
by the distributions to be made on such Distribution Date (i) to the related
class of ratio-strip principal only certificates, if any, (ii) to the related
class of ratio-strip interest only certificates, if any, and (iii) in respect
of interest on the related Class Y and Class Z Certificates, 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 allocations of ΔY52
among ΔYk, ΔYl, and ΔYm, ΔYn, and ΔYo cannot be
achieved because one or more of )Yj, ΔYk, ΔYl, ΔYm,
ΔYn and ΔYo, as so defined is greater than the related one of
ΔPj, ΔPk, ΔPl, ΔPm, ΔPn, and ΔPo, such an
allocation shall be made as close as possible to the formula allocation
within the requirement that ΔYj < ΔPj, ΔYk < ΔPk,
ΔYl < ΔPl, ΔYm < ΔPm, ΔYn < ΔPn and
ΔYo < ΔPo.
EXHIBIT A-1
FORM OF CLASS I-A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE
PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
-------------------------------------------------------------------------------
Certificate No. 1 Adjustable Pass-Through Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class I-A Senior
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Aggregate Initial Certificate
Date of Pooling and Servicing Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $____________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date: $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer: CUSIP: __________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
November 25, 2035
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class I-A Certificates with respect to a Trust Fund consisting primarily of
a pool of adjustable interest rate mortgage loans secured by first liens on
one-to-four family residential properties and sold by STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust Fund") primarily consisting of
conventional adjustable rate mortgage loans secured by first liens on one- to four- family
residential properties (collectively, the "Mortgage Loans") sold by XXXX XX. The Mortgage
Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo Bank, National
Association ("Xxxxx Fargo") will act as master servicer of the Mortgage Loans (the "Master
Servicer," which term includes any successors thereto under the Agreement referred to
below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as
of the Cut-off Date specified above (the "Agreement"), among XXXX XX, as depositor (the
"Seller"), the Master Servicer, Xxxxx Fargo, as securities administrator (the "Securities
Administrator"), EMC Mortgage Corporation and JPMorgan Chase Bank, National Association, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein shall have
the meaning ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the period from and including
the preceding Distribution Date (as hereinafter defined) (or in the case of the first
Distribution Date, from the Closing Date) to and including the day prior to the current
Distribution Date on the Certificate Principal Balance hereof at a per annum rate equal to
the Pass-Through Rate set forth in the Agreement. The Securities Administrator will
distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate is
registered at the close of business on the Business Day immediately preceding the related
Distribution Date so long as such Certificate remains in book-entry form (and otherwise,
the close of business on the last Business Day of the month immediately preceding the month
of such Distribution Date), an amount equal to the product of the Fractional Undivided
Interest evidenced by this Certificate and the amount (of interest, if any) required to be
distributed to the Holders of Certificates of the same Class as this Certificate. The
Assumed Final Distribution Date is the Distribution Date in the month following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the
Certificate Principal Balance of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice. The initial
Certificate Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions allocable to
principal hereon.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreements and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreements by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreements 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 20% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group I or (ii)
the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee
has determined that the REMIC status of any REMIC under the Agreement has been lost or that
a substantial risk exists that such REMIC status will be lost for the then-current taxable
year. The exercise of such right will effect the early retirement of the Certificates. In
no event, however, will the Trust Fund created by the Agreement continue beyond the
expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class I-A Certificates referred to in the within-mentioned
Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS I-M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED IN THE
AGREEMENT. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
EACH BENEFICIAL OWNER OF A CLASS I-M CERTIFICATE OR ANY INTEREST THEREIN SHALL BE
DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF THAT CERTIFICATE OR
INTEREST THEREIN, THAT EITHER (I) SUCH CERTIFICATE IS RATED AT LEAST "BBB-" OR ITS
EQUIVALENT BY FITCH, S&P AND XXXXX'X, (II) IT IS NOT A PLAN OR INVESTING WITH "PLAN
ASSETS"?OF ANY PLAN, (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO
ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE COMPANY GENERAL
ACCOUNT," AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60,
AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.
-------------------------------------------------------------------------------
Certificate No.1 Adjustable Pass-Through Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class I-M Subordinate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Aggregate Initial Certificate
Date of Pooling and Servicing Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date: $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer: CUSIP: __________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
November 25, 2035
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class I-M Certificates with respect to a Trust Fund consisting primarily
of a pool of adjustable interest rate mortgage loans secured by first liens on
one-to-four family residential properties and sold by STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates
of the same Class as this Certificate in a trust (the "Trust Fund") primarily consisting
of conventional adjustable rate mortgage loans secured by first liens on one- to four-
family residential properties (collectively, the "Mortgage Loans") sold by XXXX XX. The
Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo Bank,
National Association ("Xxxxx Fargo") will act as master servicer of the Mortgage Loans (the
"Master Servicer," which term includes any successors thereto under the Agreement referred
to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated
as of the Cut-off Date specified above (the "Agreement"), among XXXX XX, as depositor (the
"Seller"), the Master Servicer, Xxxxx Fargo, as securities administrator (the "Securities
Administrator"), EMC Mortgage Corporation and JPMorgan Chase Bank, National Association, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein shall have
the meaning ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the period from and including
the preceding Distribution Date (as hereinafter defined) (or in the case of the first
Distribution Date, from the Closing Date) to and including the day prior to the current
Distribution Date on the Certificate Principal Balance hereof at a per annum rate equal to
the Pass-Through Rate set forth in the Agreement. The Securities Administrator will
distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate is
registered at the close of business on the Business Day immediately preceding the related
Distribution Date so long as such Certificate remains in book-entry form (and otherwise,
the close of business on the last Business Day of the month immediately preceding the month
of such Distribution Date), an amount equal to the product of the Fractional Undivided
Interest evidenced by this Certificate and the amount (of interest, if any) required to be
distributed to the Holders of Certificates of the same Class as this Certificate. The
Assumed Final Distribution Date is the Distribution Date in the month following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the
Certificate Principal Balance of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice. The initial
Certificate Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions allocable to
principal hereon and any Realized Losses allocable hereto.
Each beneficial owner of a Class I-M Certificate or any interest therein shall be
deemed to have represented, by virtue of its acquisition or holding of that Certificate or
interest therein, that either (i) such Certificate is rated at least "BBB-" or its
equivalent by Fitch, S&P and Xxxxx'x, (ii) it is not a Plan or investing with "plan assets"
of any Plan ,(iii)(1) it is an insurance company, (2) the source of funds used to acquire
or hold the Certificate or interest therein is an "insurance company general account," as
such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the
conditions in Sections I and III of PTCE 95-60 have been satisfied.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreements and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreements by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreements 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 20% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group I or (ii)
the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee
has determined that the REMIC status of any REMIC under the Agreement has been lost or that
a substantial risk exists that such REMIC status will be lost for the then-current taxable
year. The exercise of such right will effect the early retirement of the Certificates. In
no event, however, will the Trust Fund created by the Agreement continue beyond the
expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class I-M Certificates referred to in the within-mentioned
Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS I-B-[1][2] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AND THE CLASS M CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED IN THE
AGREEMENT. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
EACH BENEFICIAL OWNER OF A CLASS I-B-[1][2] CERTIFICATE OR ANY INTEREST THEREIN SHALL
BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF THAT CERTIFICATE
OR INTEREST THEREIN, THAT EITHER (I) SUCH CERTIFICATE IS RATED AT LEAST "BBB-" OR ITS
EQUIVALENT BY FITCH, S&P AND XXXXX'X, (II) IT IS NOT A PLAN OR INVESTING WITH "PLAN
ASSETS"? OF ANY PLAN, (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO
ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE COMPANY GENERAL
ACCOUNT," AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60,
AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.
-------------------------------------------------------------------------------
Certificate No.1 Adjustable Pass-Through Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class I-B-[1][2] Subordinate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Aggregate Initial Certificate
Date of Pooling and Servicing Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date: $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer: CUSIP: __________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
November 25, 2035
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class I-B-[1][2] Certificates with respect to a Trust Fund consisting
primarily of a pool of adjustable interest rate mortgage loans secured by
first liens on one-to-four family residential properties and sold by STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates
of the same Class as this Certificate in a trust (the "Trust Fund") primarily consisting
of conventional adjustable rate mortgage loans secured by first liens on one- to four-
family residential properties (collectively, the "Mortgage Loans") sold by XXXX XX. The
Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo Bank,
National Association ("Xxxxx Fargo") will act as master servicer of the Mortgage Loans (the
"Master Servicer," which term includes any successors thereto under the Agreement referred
to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated
as of the Cut-off Date specified above (the "Agreement"), among XXXX XX, as depositor (the
"Seller"), the Master Servicer, Xxxxx Fargo, as securities administrator (the "Securities
Administrator"), EMC Mortgage Corporation and JPMorgan Chase Bank, National Association, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein shall have
the meaning ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the period from and including
the preceding Distribution Date (as hereinafter defined) (or in the case of the first
Distribution Date, from the Closing Date) to and including the day prior to the current
Distribution Date on the Certificate Principal Balance hereof at a per annum rate equal to
the Pass-Through Rate set forth in the Agreement. The Securities Administrator will
distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate is
registered at the close of business on the Business Day immediately preceding the related
Distribution Date so long as such Certificate remains in book-entry form (and otherwise,
the close of business on the last Business Day of the month immediately preceding the month
of such Distribution Date), an amount equal to the product of the Fractional Undivided
Interest evidenced by this Certificate and the amount (of interest, if any) required to be
distributed to the Holders of Certificates of the same Class as this Certificate. The
Assumed Final Distribution Date is the Distribution Date in the month following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the
Certificate Principal Balance of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice. The initial
Certificate Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions allocable to
principal hereon and any Realized Losses allocable hereto.
Each beneficial owner of a Class I-B-[1][2] Certificate or any interest therein shall
be deemed to have represented, by virtue of its acquisition or holding of that Certificate
or interest therein, that either (i) such Certificate is rated at least "BBB-" or its
equivalent by Fitch, S&P and Xxxxx'x, (ii) it is not a Plan or investing with "plan assets"
of any Plan ,(iii)(1) it is an insurance company, (2) the source of funds used to acquire
or hold the Certificate or interest therein is an "insurance company general account," as
such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the
conditions in Sections I and III of PTCE 95-60 have been satisfied.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreements and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreements by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreements 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 20% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group I or (ii)
the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee
has determined that the REMIC status of any REMIC under the Agreement has been lost or that
a substantial risk exists that such REMIC status will be lost for the then-current taxable
year. The exercise of such right will effect the early retirement of the Certificates. In
no event, however, will the Trust Fund created by the Agreement continue beyond the
expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely as
Securities Administrator
By: j
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class I-B-[1][2] Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS I-B-[3] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M,
CLASS I-B-1 AND CLASS I-B-2 CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE
PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN
RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF
THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A
LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES ADMINISTRATOR
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF
OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN") THAT IS SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR BY A PERSON USING
"PLAN ASSETS" OF A PLAN, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE SECURITIES
ADMINISTRATOR WITH AN OPINION OF COUNSEL FOR THE BENEFIT OF THE TRUSTEE, MASTER SERVICER
AND THE SECURITIES ADMINISTRATOR AND ON WHICH THEY MAY RELY WHICH IS SATISFACTORY TO THE
SECURITIES ADMINISTRATOR THAT THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE TRUSTEE OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
-------------------------------------------------------------------------------
Certificate No.1 Adjustable Pass-Through Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class I-B-[3] Senior
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Aggregate Initial Certificate
Date of Pooling and Servicing Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date:
$__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer: CUSIP: __________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
November 25, 2035
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class I-B-[3] Certificates with respect to a Trust Fund consisting
primarily of a pool of adjustable interest rate mortgage loans secured by
first liens on one-to-four family residential properties and sold by STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of
the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund") primarily
consisting of conventional adjustable rate mortgage loans secured by first liens on one- to
four- family residential properties (collectively, the "Mortgage Loans") sold by XXXX XX.
The Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo
Bank, National Association ("Xxxxx Fargo") will act as master servicer of the Mortgage
Loans (the "Master Servicer," which term includes any successors thereto under the
Agreement referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement"), among
XXXX XX, as depositor (the "Seller"), the Master Servicer, Xxxxx Fargo, as securities
administrator (the "Securities Administrator"), EMC Mortgage Corporation and JPMorgan Chase
Bank, National Association, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
The Securities Administrator will distribute on the 25th day of each month, or,
if such 25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of the related Distribution Date,
an amount equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Certificates of the
same Class as this Certificate. The Assumed Final Distribution Date is the Distribution
Date in the month following the latest scheduled maturity date of any Mortgage Loan and is
not likely to be the date on which the Certificate Principal Balance of this Class of
Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice. The initial
Certificate Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions allocable to
principal hereon.
No transfer of this Certificate shall be made unless the transfer is made
pursuant to an effective registration statement under the Securities Act of 1933, as
amended (the "1933 Act"), and an effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such registration
or qualification. In the event that such a transfer of this Certificate is to be made
without registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made (a) in reliance upon Rule 144A under the 1933 Act or (b)
to a transferee that is an "Institutional Accredited Investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act, written certifications from
the Holder of the Certificate desiring to effect the transfer, and from such Holder's
prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1
or F-2, as applicable, and (ii) if requested by the Securities Administrator, an Opinion of
Counsel satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Seller, the Trustee, the Securities Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written certification(s) of the
Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective
transferee upon which such Opinion of Counsel is based. None of the Seller, the Securities
Administrator or the Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to effect a
transfer of this Certificate shall be required to indemnify the Trustee, the Securities
Administrator, the Seller, the Seller and the Master Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of this Class I-B-[3] Certificate will be made unless the Trustee
and the Securities Administrator have received either (i) opinion of counsel for the
benefit of the Trustee, Master Servicer and the Securities Administrator and which they may
rely which is satisfactory to the Securities Administrator that the purchase of this
certificate is permissible under local law, will not constitute or result in a non-exempt
prohibited transaction under Section 406 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code, as amended (the
"Code") and will not subject the Master Servicer, the Trustee or the Securities
Administrator to any obligation or liability in addition to those undertaken in the
Agreement or (ii) a representation letter stating that the transferee is not acquiring
directly or indirectly by, or on behalf of, an employee benefit plan or other retirement
arrangement (a "Plan") that is subject to Title I of ERISA, and/or Section 4975 of the
Code, or by a person using "plan assets" of a Plan.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreement and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreement by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreement 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 20% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group I or (ii)
the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee
has determined that the REMIC status of any REMIC under the Agreement has been lost or that
a substantial risk exists that such REMIC status will be lost for the then-current taxable
year. The exercise of such right will effect the early retirement of the Certificates. In
no event, however, will the Trust Fund created by the Agreement continue beyond the
expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
Not in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class I-B-[3] Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of JPMorgan Chase Bank, not
in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-5-1
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES
PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN
RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF
THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A
LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES ADMINISTRATOR
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF
OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN") THAT IS SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR BY A PERSON USING
"PLAN ASSETS" OF A PLAN, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE SECURITIES
ADMINISTRATOR WITH AN OPINION OF COUNSEL FOR THE BENEFIT OF THE TRUSTEE, MASTER SERVICER
AND THE SECURITIES ADMINISTRATOR AND ON WHICH THEY MAY RELY WHICH IS SATISFACTORY TO THE
SECURITIES ADMINISTRATOR THAT THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE TRUSTEE OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER SERVICER AND THE
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY
OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING,
(C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF
THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX
IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL
ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN
ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH
TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF
A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
-------------------------------------------------------------------------------
Certificate No.1 Percentage Interest: 100%
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class R
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Date of Pooling and Servicing Aggregate Initial Certificate
Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $0.00
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date:
$0.00
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer: CUSIP: __________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
November 25, 2035
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class R Certificates with respect to a Trust Fund consisting primarily of a
pool of adjustable interest rate mortgage loans secured by first liens on
one-to-four family residential properties and sold by STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of
the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund") primarily
consisting of conventional adjustable rate mortgage loans secured by first liens on one- to
four- family residential properties (collectively, the "Mortgage Loans") sold by XXXX XX.
The Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo
Bank, National Association ("Xxxxx Fargo") will act as master servicer of the Mortgage
Loans (the "Master Servicer," which term includes any successors thereto under the
Agreement referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement"), among
XXXX XX, as depositor (the "Seller"), the Master Servicer, Xxxxx Fargo, as securities
administrator (the "Securities Administrator"), EMC Mortgage Corporation and JPMorgan Chase
Bank, National Association, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Each Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions set forth in the Agreement to the effect that (i) each person holding or
acquiring any ownership interest in this Certificate must be a United States Person and a
Permitted Transferee, (ii) the transfer of any ownership interest in this Certificate will
be conditioned upon the delivery to the Securities Administrator of, among other things, an
affidavit to the effect that it is a United States Person and Permitted Transferee, (iii)
any attempted or purported transfer of any ownership interest in this Certificate in
violation of such restrictions will be absolutely null and void and will vest no rights in
the purported transferee, and (iv) if any person other than a United States Person and a
Permitted Transferee acquires any ownership interest in this Certificate in violation of
such restrictions, then the Seller will have the right, in its sole discretion and without
notice to the Holder of this Certificate, to sell this Certificate to a purchaser selected
by the Seller, which purchaser may be the Seller, or any affiliate of the Seller, on such
terms and conditions as the Seller may choose.
The Securities Administrator will distribute on the 25th day of each month, or,
if such 25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of the related Distribution Date,
an amount equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amounts required to be distributed to the Holders of Certificates of
the same Class as this Certificate. The Assumed Final Distribution Date is the Distribution
Date in the month following the latest scheduled maturity date of any Mortgage Loan.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice.
No transfer of this Certificate shall be made unless the transfer is made
pursuant to an effective registration statement under the Securities Act of 1933, as
amended (the "1933 Act"), and an effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such registration
or qualification. In the event that such a transfer of this Certificate is to be made
without registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made (a) in reliance upon Rule 144A under the 1933 Act or (b)
to a transferee that is an "Institutional Accredited Investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act, written certifications from
the Holder of the Certificate desiring to effect the transfer, and from such Holder's
prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1
or F-2, as applicable, and (ii) if requested by the Securities Administrator, an Opinion of
Counsel satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Seller, the Trustee, the Securities Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written certification(s) of the
Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective
transferee upon which such Opinion of Counsel is based. None of the Seller, the Securities
Administrator or the Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to effect a
transfer of this Certificate shall be required to indemnify the Trustee, the Securities
Administrator, the Seller, the Seller and the Master Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of this Class R Certificate will be made unless the Trustee and the
Securities Administrator have received either (i) opinion of counsel for the benefit of the
Trustee, Master Servicer and the Securities Administrator and which they may rely which is
satisfactory to the Securities Administrator that the purchase of this certificate is
permissible under local law, will not constitute or result in a non-exempt prohibited
transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and Section 4975 of the Internal Revenue Code, as amended (the "Code")
and will not subject the Master Servicer, the Trustee or the Securities Administrator to
any obligation or liability in addition to those undertaken in the Agreement or (ii) a
representation letter stating that the transferee is not acquiring directly or indirectly
by, or on behalf of, an employee benefit plan or other retirement arrangement (a "Plan")
that is subject to Title I of ERISA, and/or Section 4975 of the Code, or by a person using
"plan assets" of a Plan.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreements and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreements by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreements 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 20% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group I or (ii)
the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee
has determined that the REMIC status of any REMIC under the Agreement has been lost or that
a substantial risk exists that such REMIC status will be lost for the then-current taxable
year. The exercise of such right will effect the early retirement of the Certificates. In
no event, however, will the Trust Fund created by the Agreement continue beyond the
expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the within-mentioned
Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-5-2
FORM OF CLASS R-X CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES
PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN
RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF
THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A
LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES ADMINISTRATOR
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF
OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN") THAT IS SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR BY A PERSON USING
"PLAN ASSETS" OF A PLAN, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE SECURITIES
ADMINISTRATOR WITH AN OPINION OF COUNSEL FOR THE BENEFIT OF THE TRUSTEE, MASTER SERVICER
AND THE SECURITIES ADMINISTRATOR AND ON WHICH THEY MAY RELY WHICH IS SATISFACTORY TO THE
SECURITIES ADMINISTRATOR THAT THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE TRUSTEE OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER SERVICER AND THE
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY
OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING,
(C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF
THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX
IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL
ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN
ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH
TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF
A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
-------------------------------------------------------------------------------
Certificate No.1 Percentage Interest: 100%
-------------------------------------------------------------------------------
Class R-X
-------------------------------------------------------------------------------
Date of Pooling and Servicing Aggregate Initial Certificate
Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $0.00
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date:
$0.00
-------------------------------------------------------------------------------
Master Servicer: CUSIP: ____________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
November 25, 2035
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class R-X Certificates with respect to a Trust Fund consisting primarily of
a pool of adjustable interest rate mortgage loans secured by first liens on
one-to-four family residential properties and sold by STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of
the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund") primarily
consisting of conventional adjustable rate mortgage loans secured by first liens on one- to
four- family residential properties (collectively, the "Mortgage Loans") sold by XXXX XX.
The Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo
Bank, National Association ("Xxxxx Fargo") will act as master servicer of the Mortgage
Loans (the "Master Servicer," which term includes any successors thereto under the
Agreement referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement"), among
XXXX XX, as depositor (the "Seller"), the Master Servicer, Xxxxx Fargo, as securities
administrator (the "Securities Administrator"), EMC Mortgage Corporation and JPMorgan Chase
Bank, National Association, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Each Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions set forth in the Agreement to the effect that (i) each person holding or
acquiring any ownership interest in this Certificate must be a United States Person and a
Permitted Transferee, (ii) the transfer of any ownership interest in this Certificate will
be conditioned upon the delivery to the Securities Administrator of, among other things, an
affidavit to the effect that it is a United States Person and Permitted Transferee, (iii)
any attempted or purported transfer of any ownership interest in this Certificate in
violation of such restrictions will be absolutely null and void and will vest no rights in
the purported transferee, and (iv) if any person other than a United States Person and a
Permitted Transferee acquires any ownership interest in this Certificate in violation of
such restrictions, then the Seller will have the right, in its sole discretion and without
notice to the Holder of this Certificate, to sell this Certificate to a purchaser selected
by the Seller, which purchaser may be the Seller, or any affiliate of the Seller, on such
terms and conditions as the Seller may choose.
The Securities Administrator will distribute on the 25th day of each month, or,
if such 25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of the related Distribution Date,
an amount equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amounts required to be distributed to the Holders of Certificates of
the same Class as this Certificate. The Assumed Final Distribution Date is the Distribution
Date in the month following the latest scheduled maturity date of any Mortgage Loan.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice.
No transfer of this Certificate shall be made unless the transfer is made
pursuant to an effective registration statement under the Securities Act of 1933, as
amended (the "1933 Act"), and an effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such registration
or qualification. In the event that such a transfer of this Certificate is to be made
without registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made (a) in reliance upon Rule 144A under the 1933 Act or (b)
to a transferee that is an "Institutional Accredited Investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act, written certifications from
the Holder of the Certificate desiring to effect the transfer, and from such Holder's
prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1
or F-2, as applicable, and (ii) if requested by the Securities Administrator, an Opinion of
Counsel satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Seller, the Trustee, the Securities Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written certification(s) of the
Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective
transferee upon which such Opinion of Counsel is based. None of the Seller, the Securities
Administrator or the Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to effect a
transfer of this Certificate shall be required to indemnify the Trustee, the Securities
Administrator, the Seller, the Seller and the Master Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of this Class R-X Certificate will be made unless the Trustee and
the Securities Administrator have received either (i) opinion of counsel for the benefit of
the Trustee, Master Servicer and the Securities Administrator and which they may rely which
is satisfactory to the Securities Administrator that the purchase of this certificate is
permissible under local law, will not constitute or result in a non-exempt prohibited
transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and Section 4975 of the Internal Revenue Code, as amended (the "Code")
and will not subject the Master Servicer, the Trustee or the Securities Administrator to
any obligation or liability in addition to those undertaken in the Agreement or (ii) a
representation letter stating that the transferee is not acquiring directly or indirectly
by, or on behalf of, an employee benefit plan or other retirement arrangement (a "Plan")
that is subject to Title I of ERISA, and/or Section 4975 of the Code, or by a person using
"plan assets" of a Plan.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreements and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreements by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreements 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 20% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group I or (ii)
the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee
has determined that the REMIC status of any REMIC under the Agreement has been lost or that
a substantial risk exists that such REMIC status will be lost for the then-current taxable
year. The exercise of such right will effect the early retirement of the Certificates. In
no event, however, will the Trust Fund created by the Agreement continue beyond the
expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-X Certificates referred to in the within-mentioned
Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS B-IO CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, THE CLASS
M AND THE CLASS B CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN
RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF
THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A
LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES ADMINISTRATOR
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF
OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN") THAT IS SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR BY A PERSON USING
"PLAN ASSETS" OF A PLAN, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE SECURITIES
ADMINISTRATOR WITH AN OPINION OF COUNSEL FOR THE BENEFIT OF THE TRUSTEE, MASTER SERVICER
AND THE SECURITIES ADMINISTRATOR AND ON WHICH THEY MAY RELY WHICH IS SATISFACTORY TO THE
SECURITIES ADMINISTRATOR THAT THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE TRUSTEE OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
-------------------------------------------------------------------------------
Certificate No.1 Variable Pass-Through Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class B-IO Subordinate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Date of Pooling and Servicing Aggregate Initial Notional Amount of
this Certificate as of the Cut-off
Agreement and Cut-off Date: Date:
September 1, 2005 $_____________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Notional Amount of this
First Distribution Date: Certificate as of the Cut-off Date:
October 25, 2005 $______________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer:
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date: CUSIP: ____________
November 25, 2035
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class B-IO Certificates with respect to a Trust Fund consisting primarily
of a pool of adjustable interest rate mortgage loans secured by first liens on
one-to-four family residential properties and sold by STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of
the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund") primarily
consisting of conventional adjustable rate mortgage loans secured by first liens on one- to
four- family residential properties (collectively, the "Mortgage Loans") sold by XXXX XX.
The Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo
Bank, National Association ("Xxxxx Fargo") will act as master servicer of the Mortgage
Loans (the "Master Servicer," which term includes any successors thereto under the
Agreement referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement"), among
XXXX XX, as depositor (the "Seller"), the Master Servicer, Xxxxx Fargo, as securities
administrator (the "Securities Administrator"), EMC Mortgage Corporation and JPMorgan Chase
Bank, National Association, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the calendar month immediately
preceding such Distribution Date (as hereinafter defined) on the Notional Amount hereof at
a per annum rate equal to the Pass-Through Rate as set forth in the Agreement. The
Securities Administrator will distribute on the 25th day of each month, or, if such 25th
day is not a Business Day, the immediately following Business Day (each, a "Distribution
Date"), commencing on the first Distribution Date specified above, to the Person in whose
name this Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of the related Distribution Date, an amount equal
to the product of the Fractional Undivided Interest evidenced by this Certificate and the
amount of interest required to be distributed to the Holders of Certificates of the same
Class as this Certificate. The Assumed Final Distribution Date is the Distribution Date in
the month following the latest scheduled maturity date of any Mortgage Loan.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice. The Class B-IO
Certificates have no Certificate Principal Balance. The Initial Notional Amount of this
Certificate is set forth above.
No transfer of this Certificate shall be made unless the transfer is made
pursuant to an effective registration statement under the Securities Act of 1933, as
amended (the "1933 Act"), and an effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such registration
or qualification. In the event that such a transfer of this Certificate is to be made
without registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made (a) in reliance upon Rule 144A under the 1933 Act or (b)
to a transferee that is an "Institutional Accredited Investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act, written certifications from
the Holder of the Certificate desiring to effect the transfer, and from such Holder's
prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1
or F-2, as applicable, and (ii) if requested by the Securities Administrator, an Opinion of
Counsel satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Seller, the Trustee, the Securities Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written certification(s) of the
Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective
transferee upon which such Opinion of Counsel is based. None of the Seller, the Securities
Administrator or the Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to effect a
transfer of this Certificate shall be required to indemnify the Trustee, the Securities
Administrator, the Seller, the Seller and the Master Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of this Class B-IO Certificate will be made unless the Trustee and
the Securities Administrator have received either (i) opinion of counsel for the benefit of
the Trustee, Master Servicer and the Securities Administrator and which they may rely which
is satisfactory to the Securities Administrator that the purchase of this certificate is
permissible under local law, will not constitute or result in a non-exempt prohibited
transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and Section 4975 of the Internal Revenue Code, as amended (the "Code")
and will not subject the Master Servicer, the Trustee or the Securities Administrator to
any obligation or liability in addition to those undertaken in the Agreement or (ii) a
representation letter stating that the transferee is not acquiring directly or indirectly
by, or on behalf of, an employee benefit plan or other retirement arrangement (a "Plan")
that is subject to Title I of ERISA, and/or Section 4975 of the Code, or by a person using
"plan assets" of a Plan.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreements and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreements by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreements 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 20% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group I or (ii)
the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee
has determined that the REMIC status of any REMIC under the Agreement has been lost or that
a substantial risk exists that such REMIC status will be lost for the then-current taxable
year. The exercise of such right will effect the early retirement of the Certificates. In
no event, however, will the Trust Fund created by the Agreement continue beyond the
expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
Not in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-IO Certificates referred to in the within-mentioned
Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS XP CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN
RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF
THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A
LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES ADMINISTRATOR
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF
OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN") THAT IS SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR BY A PERSON USING
"PLAN ASSETS" OF A PLAN, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE SECURITIES
ADMINISTRATOR WITH AN OPINION OF COUNSEL FOR THE BENEFIT OF THE TRUSTEE, MASTER SERVICER
AND THE SECURITIES ADMINISTRATOR AND ON WHICH THEY MAY RELY WHICH IS SATISFACTORY TO THE
SECURITIES ADMINISTRATOR THAT THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE TRUSTEE OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
-------------------------------------------------------------------------------
Certificate No.1 Percentage Interest: 100%
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class XP Senior
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Date of Pooling and Servicing Aggregate Initial Certificate
Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $0
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date:
$0
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer: CUSIP: ___________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
April 25, 2035
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class XP Certificates with respect to a Trust Fund consisting primarily of
a pool of adjustable interest rate mortgage loans secured by first liens on
one-to-four family residential properties and sold by STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of
the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund") primarily
consisting of conventional adjustable rate mortgage loans secured by first liens on one- to
four- family residential properties (collectively, the "Mortgage Loans") sold by XXXX XX.
The Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo
Bank, National Association ("Xxxxx Fargo") will act as master servicer of the Mortgage
Loans (the "Master Servicer," which term includes any successors thereto under the
Agreement referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement"), among
XXXX XX, as depositor (the "Seller"), the Master Servicer, Xxxxx Fargo, as securities
administrator (the "Securities Administrator"), EMC Mortgage Corporation and JPMorgan Chase
Bank, National Association, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
The Securities Administrator will distribute on the 25th day of each month, or,
if such 25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of the related Distribution Date,
an amount equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Certificates of the
same Class as this Certificate. The Assumed Final Distribution Date is the Distribution
Date in the month following the latest scheduled maturity date of any Mortgage Loan and is
not likely to be the date on which the Certificate Principal Balance of this Class of
Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice. The initial
Certificate Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions allocable to
principal hereon.
No transfer of this Certificate shall be made unless the transfer is made
pursuant to an effective registration statement under the Securities Act of 1933, as
amended (the "1933 Act"), and an effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such registration
or qualification. In the event that such a transfer of this Certificate is to be made
without registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made (a) in reliance upon Rule 144A under the 1933 Act or (b)
to a transferee that is an "Institutional Accredited Investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act, written certifications from
the Holder of the Certificate desiring to effect the transfer, and from such Holder's
prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1
or F-2, as applicable, and (ii) if requested by the Securities Administrator, an Opinion of
Counsel satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Seller, the Trustee, the Securities Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written certification(s) of the
Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective
transferee upon which such Opinion of Counsel is based. None of the Seller, the Securities
Administrator or the Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to effect a
transfer of this Certificate shall be required to indemnify the Trustee, the Securities
Administrator, the Seller, the Seller and the Master Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of this Class XP Certificate will be made unless the Trustee and
the Securities Administrator have received either (i) opinion of counsel for the benefit of
the Trustee, Master Servicer and the Securities Administrator and which they may rely which
is satisfactory to the Securities Administrator that the purchase of this certificate is
permissible under local law, will not constitute or result in a non-exempt prohibited
transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and Section 4975 of the Internal Revenue Code, as amended (the "Code")
and will not subject the Master Servicer, the Trustee or the Securities Administrator to
any obligation or liability in addition to those undertaken in the Agreement or (ii) a
representation letter stating that the transferee is not acquiring directly or indirectly
by, or on behalf of, an employee benefit plan or other retirement arrangement (a "Plan")
that is subject to Title I of ERISA, and/or Section 4975 of the Code, or by a person using
"plan assets" of a Plan.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreements and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreements by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreements 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 20% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group I or (ii)
the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee
has determined that the REMIC status of any REMIC under the Agreement has been lost or that
a substantial risk exists that such REMIC status will be lost for the then-current taxable
year. The exercise of such right will effect the early retirement of the Certificates. In
no event, however, will the Trust Fund created by the Agreement continue beyond the
expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
Not in its individual capacity but solely as
Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XP Certificates referred to in the within-mentioned
Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-8
FORM OF CLASS II-A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE
PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
-------------------------------------------------------------------------------
Certificate No. 1 Adjustable Pass-Through Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class II-A Senior
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Aggregate Initial Certificate
Date of Pooling and Servicing Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $____________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date: $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer: CUSIP: __________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
November 25, 2035
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class II-A Certificates with respect to a Trust Fund consisting primarily
of a pool of adjustable interest rate mortgage loans secured by first liens on
one-to-four family residential properties and sold by STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates of
the same Class as this Certificate in a trust (the "Trust Fund") primarily consisting of
conventional adjustable rate mortgage loans secured by first liens on one- to four- family
residential properties (collectively, the "Mortgage Loans") sold by XXXX XX. The Mortgage
Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo Bank, National
Association ("Xxxxx Fargo") will act as master servicer of the Mortgage Loans (the "Master
Servicer," which term includes any successors thereto under the Agreement referred to
below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as
of the Cut-off Date specified above (the "Agreement"), among XXXX XX, as depositor (the
"Seller"), the Master Servicer, Xxxxx Fargo, as securities administrator (the "Securities
Administrator"), EMC Mortgage Corporation and JPMorgan Chase Bank, National Association, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein shall have
the meaning ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the period from and including
the preceding Distribution Date (as hereinafter defined) (or in the case of the first
Distribution Date, from the Closing Date) to and including the day prior to the current
Distribution Date on the Certificate Principal Balance hereof at a per annum rate equal to
the Pass-Through Rate set forth in the Agreement. The Securities Administrator will
distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate is
registered at the close of business on the Business Day immediately preceding the related
Distribution Date so long as such Certificate remains in book-entry form (and otherwise,
the close of business on the last Business Day of the month immediately preceding the month
of such Distribution Date), an amount equal to the product of the Fractional Undivided
Interest evidenced by this Certificate and the amount (of interest, if any) required to be
distributed to the Holders of Certificates of the same Class as this Certificate. The
Assumed Final Distribution Date is the Distribution Date in the month following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the
Certificate Principal Balance of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice. The initial
Certificate Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions allocable to
principal hereon.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreements and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreements by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreements 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group II or
(ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the
Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost
or that a substantial risk exists that such REMIC status will be lost for the then-current
taxable year. The exercise of such right will effect the early retirement of the
Certificates. In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified in the
Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class II-A Certificates referred to in the within-mentioned
Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-10
FORM OF CLASS II-M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS II-A
CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED IN THE
AGREEMENT. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
EACH BENEFICIAL OWNER OF A CLASS II-B-[1][2][3][4] CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF
THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I) SUCH CERTIFICATE IS RATED AT LEAST
"BBB-" OR ITS EQUIVALENT BY FITCH, S&P AND XXXXX'X, (II) IT IS NOT A PLAN OR INVESTING WITH
"PLAN ASSETS"? OF ANY PLAN, (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS
USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE COMPANY
GENERAL ACCOUNT," AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 95-60, AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN
SATISFIED.
-------------------------------------------------------------------------------
Certificate No.1 Adjustable Pass-Through Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class II-M Subordinate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Aggregate Initial Certificate
Date of Pooling and Servicing Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date: $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer: CUSIP: ___________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
November 25, 2035
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class II-M Certificates with respect to a Trust Fund consisting primarily
of a pool of adjustable interest rate mortgage loans secured by first liens on
one-to-four family residential properties and sold by STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates
of the same Class as this Certificate in a trust (the "Trust Fund") primarily consisting
of conventional adjustable rate mortgage loans secured by first liens on one- to four-
family residential properties (collectively, the "Mortgage Loans") sold by XXXX XX. The
Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo Bank,
National Association ("Xxxxx Fargo") will act as master servicer of the Mortgage Loans (the
"Master Servicer," which term includes any successors thereto under the Agreement referred
to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated
as of the Cut-off Date specified above (the "Agreement"), among XXXX XX, as depositor (the
"Seller"), the Master Servicer, Xxxxx Fargo, as securities administrator (the "Securities
Administrator"), EMC Mortgage Corporation and JPMorgan Chase Bank, National Association, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein shall have
the meaning ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the period from and including
the preceding Distribution Date (as hereinafter defined) (or in the case of the first
Distribution Date, from the Closing Date) to and including the day prior to the current
Distribution Date on the Certificate Principal Balance hereof at a per annum rate equal to
the Pass-Through Rate set forth in the Agreement. The Securities Administrator will
distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate is
registered at the close of business on the Business Day immediately preceding the related
Distribution Date so long as such Certificate remains in book-entry form (and otherwise,
the close of business on the last Business Day of the month immediately preceding the month
of such Distribution Date), an amount equal to the product of the Fractional Undivided
Interest evidenced by this Certificate and the amount (of interest, if any) required to be
distributed to the Holders of Certificates of the same Class as this Certificate. The
Assumed Final Distribution Date is the Distribution Date in the month following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the
Certificate Principal Balance of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice. The initial
Certificate Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions allocable to
principal hereon and any Realized Losses allocable hereto.
Each beneficial owner of a Class II-M Certificate or any interest therein shall be
deemed to have represented, by virtue of its acquisition or holding of that Certificate or
interest therein, that either (i) such Certificate is rated at least "BBB-" or its
equivalent by Fitch, S&P and Xxxxx'x, (ii) it is not a Plan or investing with "plan assets"
of any Plan ,(iii)(1) it is an insurance company, (2) the source of funds used to acquire
or hold the Certificate or interest therein is an "insurance company general account," as
such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the
conditions in Sections I and III of PTCE 95-60 have been satisfied.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreements and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreements by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreements 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group IIor (ii)
the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the Trustee
has determined that the REMIC status of any REMIC under the Agreement has been lost or that
a substantial risk exists that such REMIC status will be lost for the then-current taxable
year. The exercise of such right will effect the early retirement of the Certificates. In
no event, however, will the Trust Fund created by the Agreement continue beyond the
expiration of 21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class II-M Certificates referred to in the within-mentioned
Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-10
FORM OF CLASS II-B-[1][2][3][4] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS II-A
CERTIFICATES AND CLASS II-M CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED IN THE
AGREEMENT. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
EACH BENEFICIAL OWNER OF A CLASS II-B-[1][2][3][4] CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF
THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I) SUCH CERTIFICATE IS RATED AT LEAST
"BBB-" OR ITS EQUIVALENT BY FITCH, S&P AND XXXXX'X, (II) IT IS NOT A PLAN OR INVESTING WITH
"PLAN ASSETS"? OF ANY PLAN, (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS
USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE COMPANY
GENERAL ACCOUNT," AS SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 95-60, AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN
SATISFIED.
-------------------------------------------------------------------------------
Certificate No.1 Adjustable Pass-Through Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class II-B-[1][2][3][4] Subordinate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Aggregate Initial Certificate
Date of Pooling and Servicing Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date: $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer: CUSIP: ___________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
November 25, 2035
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class II-B-[1][2][3][4] Certificates with respect to a Trust Fund
consisting primarily of a pool of adjustable interest rate mortgage loans
secured by first liens on one-to-four family residential properties and sold by
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of Certificates
of the same Class as this Certificate in a trust (the "Trust Fund") primarily consisting
of conventional adjustable rate mortgage loans secured by first liens on one- to four-
family residential properties (collectively, the "Mortgage Loans") sold by XXXX XX. The
Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo Bank,
National Association ("Xxxxx Fargo") will act as master servicer of the Mortgage Loans (the
"Master Servicer," which term includes any successors thereto under the Agreement referred
to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated
as of the Cut-off Date specified above (the "Agreement"), among XXXX XX, as depositor (the
"Seller"), the Master Servicer, Xxxxx Fargo, as securities administrator (the "Securities
Administrator"), EMC Mortgage Corporation and JPMorgan Chase Bank, National Association, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein shall have
the meaning ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the period from and including
the preceding Distribution Date (as hereinafter defined) (or in the case of the first
Distribution Date, from the Closing Date) to and including the day prior to the current
Distribution Date on the Certificate Principal Balance hereof at a per annum rate equal to
the Pass-Through Rate set forth in the Agreement. The Securities Administrator will
distribute on the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate is
registered at the close of business on the Business Day immediately preceding the related
Distribution Date so long as such Certificate remains in book-entry form (and otherwise,
the close of business on the last Business Day of the month immediately preceding the month
of such Distribution Date), an amount equal to the product of the Fractional Undivided
Interest evidenced by this Certificate and the amount (of interest, if any) required to be
distributed to the Holders of Certificates of the same Class as this Certificate. The
Assumed Final Distribution Date is the Distribution Date in the month following the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the date on which the
Certificate Principal Balance of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice. The initial
Certificate Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions allocable to
principal hereon and any Realized Losses allocable hereto.
Each beneficial owner of a Class II-B-[1][2][3][4] Certificate or any interest
therein shall be deemed to have represented, by virtue of its acquisition or holding of
that Certificate or interest therein, that either (i) such Certificate is rated at least
"BBB-" or its equivalent by Fitch, S&P and Xxxxx'x, (ii) it is not a Plan or investing with
"plan assets" of any Plan ,(iii)(1) it is an insurance company, (2) the source of funds
used to acquire or hold the Certificate or interest therein is an "insurance company
general account," as such term is defined in Prohibited Transaction Class Exemption
("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreements and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreements by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreements 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group II or
(ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the
Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost
or that a substantial risk exists that such REMIC status will be lost for the then-current
taxable year. The exercise of such right will effect the early retirement of the
Certificates. In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified in the
Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class II-B-[1][2][3][4] Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
EXHIBIT A-11
FORM OF CLASS II-B-[4][5][6] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS II-A, CLASS
II-B-1, CLASS II-B-2, CLASS II-B-3 AND CLASS II-B-4 CERTIFICATES AS DESCRIBED IN THE
AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE
PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN
RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF
THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A
LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES ADMINISTRATOR
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF
OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN") THAT IS SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR BY A PERSON USING
"PLAN ASSETS" OF A PLAN, UNLESS THE PROPOSED TRANSFEREE PROVIDES THE SECURITIES
ADMINISTRATOR WITH AN OPINION OF COUNSEL FOR THE BENEFIT OF THE TRUSTEE, MASTER SERVICER
AND THE SECURITIES ADMINISTRATOR AND ON WHICH THEY MAY RELY WHICH IS SATISFACTORY TO THE
SECURITIES ADMINISTRATOR THAT THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE TRUSTEE OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT.
-------------------------------------------------------------------------------
Certificate No.1 Adjustable Pass-Through Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Class II-B-[4][5][6] Senior
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Aggregate Initial Certificate
Date of Pooling and Servicing Principal Balance of this Certificate
Agreement and Cut-off Date: as of the Cut-off Date:
September 1, 2005 $__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Initial Certificate Principal Balance
First Distribution Date: of this Certificate as of the Cut-off
October 25, 2005 Date:
$__________
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Master Servicer: CUSIP: ____________
Xxxxx Fargo Bank, National Association
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Assumed Final Distribution Date:
November 25, 2035
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
BEAR XXXXXXX ALT-A TRUST 2005-9
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
evidencing a fractional undivided interest in the distributions allocable to
the Class II-B-[4][5][6] Certificates with respect to a Trust Fund consisting
primarily of a pool of adjustable interest rate mortgage loans secured by
first liens on one-to-four family residential properties and sold by STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Structured Asset Mortgage Investments II Inc.
("XXXX XX"), the Master Servicer, the Securities Administrator or the Trustee referred to
below or any of their affiliates or any other person. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental entity or by XXXX
XX, the Master Servicer or the Trustee or any of their affiliates or any other person. None
of XXXX XX, the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered owner of
the Fractional Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund") primarily
consisting of conventional adjustable rate mortgage loans secured by first liens on one- to
four- family residential properties (collectively, the "Mortgage Loans") sold by XXXX XX.
The Mortgage Loans were sold by EMC Mortgage Corporation ("EMC") to XXXX XX. Xxxxx Fargo
Bank, National Association ("Xxxxx Fargo") will act as master servicer of the Mortgage
Loans (the "Master Servicer," which term includes any successors thereto under the
Agreement referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement"), among
XXXX XX, as depositor (the "Seller"), the Master Servicer, Xxxxx Fargo, as securities
administrator (the "Securities Administrator"), EMC Mortgage Corporation and JPMorgan Chase
Bank, National Association, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and conditions of
the Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
The Securities Administrator will distribute on the 25th day of each month, or,
if such 25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of the related Distribution Date,
an amount equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Certificates of the
same Class as this Certificate. The Assumed Final Distribution Date is the Distribution
Date in the month following the latest scheduled maturity date of any Mortgage Loan and is
not likely to be the date on which the Certificate Principal Balance of this Class of
Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Securities Administrator
by check mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by notifying the
Securities Administrator in writing as specified in the Agreement, by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be made after
due notice by the Securities Administrator of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency appointed by
the Securities Administrator for that purpose and designated in such notice. The initial
Certificate Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions allocable to
principal hereon.
No transfer of this Certificate shall be made unless the transfer is made
pursuant to an effective registration statement under the Securities Act of 1933, as
amended (the "1933 Act"), and an effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such registration
or qualification. In the event that such a transfer of this Certificate is to be made
without registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made (a) in reliance upon Rule 144A under the 1933 Act or (b)
to a transferee that is an "Institutional Accredited Investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act, written certifications from
the Holder of the Certificate desiring to effect the transfer, and from such Holder's
prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1
or F-2, as applicable, and (ii) if requested by the Securities Administrator, an Opinion of
Counsel satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Seller, the Trustee, the Securities Administrator or the Master Servicer in their
respective capacities as such), together with copies of the written certification(s) of the
Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective
transferee upon which such Opinion of Counsel is based. None of the Seller, the Securities
Administrator or the Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to effect a
transfer of this Certificate shall be required to indemnify the Trustee, the Securities
Administrator, the Seller, the Seller and the Master Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of this Class II-B-[4][5][6] Certificate will be made unless the
Trustee and the Securities Administrator have received either (i) opinion of counsel for
the benefit of the Trustee, Master Servicer and the Securities Administrator and which they
may rely which is satisfactory to the Securities Administrator that the purchase of this
certificate is permissible under local law, will not constitute or result in a non-exempt
prohibited transaction under Section 406 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code, as amended (the
"Code") and will not subject the Master Servicer, the Trustee or the Securities
Administrator to any obligation or liability in addition to those undertaken in the
Agreement or (ii) a representation letter stating that the transferee is not acquiring
directly or indirectly by, or on behalf of, an employee benefit plan or other retirement
arrangement (a "Plan") that is subject to Title I of ERISA, and/or Section 4975 of the
Code, or by a person using "plan assets" of a Plan.
This Certificate is one of a duly authorized issue of Certificates designated
as set forth on the face hereof (the "Certificates"). The Certificates, in the aggregate,
evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the
Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the Trust Fund for payment hereunder and that neither the Securities
Administrator nor the Trustee 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 hereby, and the rights, duties and immunities of the
Securities Administrator.
The Agreement permits, with certain exceptions therein provided: (i) the
amendment thereof and of the Servicing Agreement and the modification of the rights and
obligations of the Seller, the Master Servicer, the Securities Administrator and the
Trustee and the rights of the Certificateholders under the Agreement from time to time by
EMC, the Seller, the Master Servicer, the Securities Administrator and the Trustee, and
(ii) the amendment thereof and of the Servicing Agreement by the Master Servicer and the
Trustee with the consent of the Holders of Certificates, evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional Undivided
Interests thereof). Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the amendment
thereof and of the Servicing Agreement 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 with the Securities Administrator
upon surrender of this Certificate for registration of transfer at the offices or agencies
maintained by the Securities Administrator for such purposes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued to the
designated transferee.
The Certificates are issuable only as registered Certificates without coupons
in the Classes and denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, this Certificate is exchangeable for
one or more new Certificates evidencing the same Class and in the same aggregate Fractional
Undivided Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
The Seller, the Master Servicer, the Trustee, the Securities Administrator and any agent of
any of them may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Seller, the Master Servicer, the Trustee, the
Securities Administrator or any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make payments to Certificateholders with respect to the
termination of the Agreement) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan and (B) the remittance of all funds due
under the Agreement, or (ii) the optional repurchase by the party named in the Agreement of
all the Mortgage Loans and other assets of the Trust Fund in accordance with the terms of
the Agreement. Such optional repurchase may be made only if (i) the Scheduled Principal
Balance of the Mortgage Loans at the time of any such repurchase is less than 10% of the
sum of (x) the Cut-off Date Balance and (y) the Pre-Funded Amounts for Loan Group II or
(ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor and the
Trustee has determined that the REMIC status of any REMIC under the Agreement has been lost
or that a substantial risk exists that such REMIC status will be lost for the then-current
taxable year. The exercise of such right will effect the early retirement of the
Certificates. In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified in the
Agreement.
Unless this Certificate has been countersigned by an authorized signatory of
the Securities Administrator by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: September 30, 2005 XXXXX FARGO BANK, NATIONAL ASSOCIATION
Not in its individual capacity but solely as
Securities Administrator
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class II-B-[4][5][6] Certificates referred to in the
within-mentioned Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Authorized signatory of Xxxxx Fargo Bank,
National Association, not in its individual
capacity but solely as Securities Administrator
By:
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced by the
within Mortgage Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such Certificate to
the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
_________________________ account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This information is provided by __________________, the assignee named above,
or ________________________, as its agent.
B-2
EXHIBIT B
MORTGAGE LOAN SCHEDULE
The Preliminary and Final Mortgage Loan Schedules shall set forth the following
information with respect to each Mortgage Loan:
(a) the loan number;
(b) the Mortgagor's name;
(c) the city, state and zip code of the Mortgaged Property;
(d) the property type;
(e) the Mortgage Interest Rate;
(f) the Servicing Fee Rate;
(g) the Net Rate;
(h) the original term;
(i) the maturity date;
(j) the stated remaining term to maturity;
(k) the original Principal Balance;
(1) the first payment date;
(m) the principal and interest payment in effect as of the Cut-off Date;
(n) the unpaid Principal Balance as of the Cut-off Date;
(o) the Loan-to-Value Ratio at origination;
(p) the paid-through date;
(q) the insurer of any Primary Mortgage Insurance Policy;
(r) the Gross Margin, if applicable;
(s) the Maximum Lifetime Mortgage Rate, if applicable;
(t) the Minimum Lifetime Mortgage Rate, if applicable;
(u) the Periodic Rate Cap, if applicable;
(v) the number of days delinquent, if any;
(w) a code indicating whether the Mortgage Loan is negatively amortizing; and
(x) which Mortgage Loans adjust after an initial fixed-rate period of one, two, three,
five, seven or ten years.
Such schedule also shall set forth for all of the Mortgage Loans, the total number of
Mortgage Loans, the total of each of the amounts described under (k) and (n) above, the
weighted average by principal balance as of the Cut-off Date of each of the rates described
under (e), (f) and (g) above, and the weighted average remaining term to maturity by unpaid
principal balance as of the Cut-off Date.
EXHIBIT C
[RESERVED]
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: JPMorgan Chase Bank, National Association
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: Pooling and Servicing Agreement, dated as of September 1, 2005 among Structured Asset
Mortgage Investments II Inc., as depositor, Xxxxx Fargo Bank, National Association as
master servicer and securities administrator, EMC Mortgage Corporation and JPMorgan
Chase Bank, National Association, as trustee, issuing Bear Xxxxxxx Alt-A Trust
2005-9, Mortgage Pass-Through Certificates, Series 2005-9
In connection with the administration of the Mortgage Loans held by you pursuant to
the above-captioned Pooling and Servicing Agreement, we request the release, and hereby
acknowledge receipt, of the Mortgage File for the Mortgage Loan described below, for the
reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
_____ 1. Mortgage Paid in Full and proceeds have been deposited into the Custodial
Account
_____ 2. Foreclosure
_____ 3. Substitution
_____ 4. Other Liquidation
_____ 5. Nonliquidation Reason:
_____ 6. California Mortgage Loan paid in full
By:
(authorized signer)
Issuer:
Address:
Date:
EXHIBIT E
FORM OF TRANSFER AFFIDAVIT
Affidavit pursuant to Section 860E(e)(4) of
the Internal Revenue Code of 1986, as amended,
and for other purposes
STATE OF )
)ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (record or beneficial owner
of the Bear Xxxxxxx ALT-A Trust 2005-9, Mortgage Pass-Through Certificates, Series 2005-9,
Class R-__ Certificates) (the "Class R Certificates") (the "Owner"), a [savings
institution] [corporation] duly organized and existing under the laws of [the State of
_____] [the United States], on behalf of which he makes this affidavit.
2. That the Owner (i) is not and will not be as of [Closing Date][date of
purchase] a "disqualified organization" within the meaning of Section 860E(e)(5) of the
Internal Revenue Code of 1986, as amended (the "Code") or an "electing large partnership"
within the meaning of Section 775 of the Code, (ii) will endeavor to remain other than a
disqualified organization and an electing large partnership for so long as it retains its
ownership in the Class R Certificates and (iii) is acquiring the Class R Certificates for
its own account or for the account of another Owner from which it has received an affidavit
and agreement in substantially the same form as this affidavit and agreement. (For this
purpose, a "disqualified organization" means an electing large partnership under Section
775 of the Code, the United States, any state or political subdivision thereof, any agency
or instrumentality of any of the foregoing (other than an instrumentality all of the
activities of which are subject to tax and, except for the Federal Home Loan Mortgage
Corporation, a majority of whose board of directors is not selected by any such
governmental entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives) that is
generally exempt from federal income tax unless such organization is subject to the tax on
unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on transfers of
Class R Certificates to disqualified organizations or electing large partnerships under the
Code, that applies to all transfers of Class R Certificates after March 31, 1988; (ii) that
such tax would be on the transferor (or, with respect to transfers to electing large
partnerships, on each such partnership), or, if such transfer is through an agent (which
person includes a broker, nominee or middleman) for a disqualified organization, on the
agent; (iii) that the person (other than with respect to transfers to electing large
partnerships) otherwise liable for the tax shall be relieved of liability for the tax if
the transferee furnishes to such person an affidavit that the transferee is not a
disqualified organization and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that the Class R Certificates may be
"noneconomic residual interests" within the meaning of Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer was to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through entity"
holding Class R Certificates if either the pass-through entity is an electing large
partnership under Section 775 of the Code or if at any time during the taxable year of the
pass-through entity a disqualified organization is the record holder of an interest in such
entity. (For this purpose, a "pass through entity" includes a regulated investment company,
a real estate investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. That the Owner is aware that the Trustee will not register the transfer
of any Class R Certificates unless the transferee, or the transferee's agent, delivers to
it an affidavit and agreement, among other things, in substantially the same form as this
affidavit and agreement. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained in such
affidavit and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the face of the
Class R Certificates and the provisions of Section 5.05 of the Pooling and Servicing
Agreement under which the Class R Certificates were issued. The Owner expressly agrees to
be bound by and to comply with such restrictions and provisions.
7. That the Owner consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Class R Certificates will only be owned, directly or
indirectly, by an Owner that is not a disqualified organization.
8. The Owner's Taxpayer Identification Number is # _______________.
9. This affidavit and agreement relates only to the Class R Certificates
held by the Owner and not to any other holder of the Class R Certificates. The Owner
understands that the liabilities described herein relate only to the Class R Certificates.
10. That no purpose of the Owner relating to the transfer of any of the Class
R Certificates by the Owner is or will be to impede the assessment or collection of any
tax; in making this representation, the Owner warrants that the Owner is familiar with (i)
Treasury Regulation Section 1.860E-1 (c) and recent amendments thereto, effective as of
August 19, 2002, and (ii) the preamble describing the adoption of the amendments to such
regulation, which is attached hereto as Exhibit 1.
11. That the Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the Certificates remain
outstanding. In this regard, the Owner hereby represents to and for the benefit of the
person from whom it acquired the Class R Certificates that the Owner intends to pay taxes
associated with holding such Class R Certificates as they become due, fully understanding
that it may incur tax liabilities in excess of any cash flows generated by the Class R
Certificates.
12. That the Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as any of the Class R
Certificates remain outstanding.
13. The Owner is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of, the United
States or any political subdivision thereof, or an estate or trust whose income from
sources without the United States is includable in gross income for United States federal
income tax purposes regardless of its connection with the conduct of a trade or business
within the United States.
14. The Owner hereby agrees that it will not cause income from the Class R
Certificates to be attributable to a foreign permanent establishment or fixed base (within
the meaning of an applicable income tax treaty) of the Owner or another United States
taxpayer.
15. (a) The Purchaser hereby certifies, represents and warrants to, and
covenants with the Company, the Trustee and the Master Servicer that the following
statements in (1) or (2) are accurate:
(1) The Certificates (i) are not being acquired by, and will not
be transferred to, any employee benefit plan within the meaning of section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate accounts in which
such plans, accounts or arrangements are invested, that is subject to Section 406 of ERISA
or Section 4975 of the Internal Revenue Code of 1986 (the "Code") (any of the foregoing, a
"Plan"), (ii) are not being acquired with "plan assets" of a Plan within the meaning of the
Department of Labor ("DOL") regulation, 29 C.F.R. ? 2510.3-101 or otherwise under ERISA,
and (iii) will not be transferred to any entity that is deemed to be investing plan assets
within the meaning of the DOL regulation, 29 C.F.R. ? 2510.3-101 or otherwise under ERISA;
(2) The purchase of Certificates is permissible under applicable law,
will not constitute or result in any prohibited transaction under ERISA or Section 4975 of
the Code, will not subject the Company, the Trustee or the Master Servicer to any
obligation in addition to those undertaken in the Pooling and Servicing Agreement and, with
respect to each source of funds ("Source") being used by the Purchaser to acquire the
Certificates, each of the following statements is accurate: (a) the Purchaser is an
insurance company; (b) the Source is assets of the Purchaser's "general account;" (c) the
conditions set forth in Prohibited Transaction Class Exemption ("PTCE") 95-60 issued by the
DOL have been satisfied and the purchase, holding and transfer of Certificates by or on
behalf of the Purchaser are exempt under PTCE 95-60; and (d) the amount of reserves and
liabilities for such general account contracts held by or on behalf of any Plan does not
exceed 10% of the total reserves and liabilities of such general account plus surplus as of
the date hereof (for purposes of this clause, all Plans maintained by the same employer (or
affiliate thereof) or employee organization are deemed to be a single Plan) in connection
with its purchase and holding of such Certificates; or
(b) The Owner will provide the Trustee, the Company and the Master Servicer
with an opinion of counsel acceptable to and in form and substance satisfactory to the
Trustee, the Company and the Master Servicer to the effect that the purchase of
Certificates is permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Trustee, the Company or the Master Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in the Pooling and Servicing Agreement.
In addition, the Owner hereby certifies, represents and warrants to, and
covenants with, the Company, the Trustee and the Master Servicer that the Owner will not
transfer such Certificates to any Plan or person unless either such Plan or person meets
the requirements set forth in either (a) or (b) above.
Capitalized terms used but not defined herein shall have the meanings assigned
in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on its
behalf, pursuant to authority of its Board of Directors, by its [Title of Officer] this
____ day of _________, 20__.
[NAME OF INVESTOR]
By:
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt of distributions]
Address of Investor for receipt of tax information:
Personally appeared before me the above-named [Name of Officer], known or proved to
me to be the same person who executed the foregoing instrument and to be the [Title of
Officer] of the Investor, and acknowledged to me that he executed the same as his free act
and deed and the free act and deed of the Investor.
Subscribed and sworn before me this ___ day of _________, 20___.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the ___ day of ___________________, 20___.
3
EXHIBIT F-1
FORM OF INVESTMENT LETTER (NON-RULE 144A)
______________,200___
Structured Asset Mortgage Investments II Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank, National Association
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Bear Xxxxxxx Alt-A Trust 2005-9
Re: Bear Xxxxxxx Alt-A Trust 2005-9
Mortgage Pass-Through Certificates, Series 2005-9, Class___
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase from ______________ (the
"Seller") $_________ initial Certificate Principal Balance of Mortgage Pass-Through
Certificates, Series 2005-9, Class _____ (the "Certificates"), issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
September 1, 2005 among Structured Asset Mortgage Investments II Inc., as depositor (the
"Seller"), EMC Mortgage Corporation, Xxxxx Fargo Bank, National Association, as master
servicer and securities administrator, and JPMorgan Chase Bank, National Association, as
trustee (the "Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Purchaser hereby certifies,
represents and warrants to, and covenants with, the Seller and the Trustee that:
1. The Purchaser understands that (a) the Certificates have not been
and will not be registered or qualified under the Securities Act of 1933, as
amended (the "Act") or any state securities law, (b) the Seller is not required
to so register or qualify the Certificates, (c) the Certificates may be resold
only if registered and qualified pursuant to the provisions of the Act or any
state securities law, or if an exemption from such registration and
qualification is available, (d) the Pooling and Servicing Agreement contains
restrictions regarding the transfer of the Certificates and (e) the
Certificates will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or any applicable
state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters, and, in particular, in such matters related to securities similar to
the Certificates, such that it is capable of evaluating the merits and risks of
investment in the Certificates, (b) able to bear the economic risks of such an
investment and (c) an "accredited investor" within the meaning of Rule 501 (a)
promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an opportunity
to review (a) a copy of the Pooling and Servicing Agreement and (b) such other
information concerning the Certificates, the Mortgage Loans and the Seller as
has been requested by the Purchaser from the Seller or the Seller and is
relevant to the Purchaser's decision to purchase the Certificates. The
Purchaser has had any questions arising from such review answered by the Seller
or the Seller to the satisfaction of the Purchaser.
5. The Purchaser has not and will not nor has it authorized or will it
authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicit any offer to buy or to accept
a pledge, disposition of other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) make any general solicitation by means of general advertising or in any
other manner or (e) take any other action, that (as to any of (a) through (e)
above) would constitute a distribution of any Certificate under the Act, that
would render the disposition of any Certificate a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Purchaser will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions of
the Pooling and Servicing Agreement.
6. The Purchaser (if the Certificate is not rated at least "BBB-" or
its equivalent by Fitch, S&P or Xxxxx'x):
(a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly or
indirectly, on behalf of or purchasing any Certificate with "plan assets" of
any Plan within the meaning of the Department of Labor ("DOL") regulation at 29
C.F.R. §2510.3-101; or
(b) is an insurance company, the source of funds to be used by
it to purchase the Certificates is an "insurance company general account"
(within the meaning of DOL Prohibited Transaction Class Exemption ("PTCE")
95-60), and the purchase is being made in reliance upon the availability of the
exemptive relief afforded under Sections I and III of PTCE 95-60.]
In addition, the Purchaser hereby certifies, represents and warrants to, and
covenants with, the Company, the Trustee, the Securities Administrator and the Master
Servicer that the Purchaser will not transfer such Certificates to any Plan or person
unless such Plan or person meets the requirements set forth in either 6(a) or (b) above.
-------------------------------------------------------------------------------
Very truly yours,
[PURCHASER]
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
By:
Name:
Title:
-------------------------------------------------------------------------------
EXHIBIT F-2
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance with the agreements pursuant
to which the Rule 144A Securities were issued, the Seller hereby certifies the following
facts: Neither the Seller nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security from, or otherwise approached or negotiated
with respect to the Rule 144A Securities, any interest in the Rule 144A Securities or any
other similar security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Rule 144A Securities under the Securities Act of 1933, as
amended (the "1933 Act"), or that would render the disposition of the Rule 144A Securities
a violation of Section 5 of the 1933 Act or require registration pursuant thereto, and that
the Seller has not offered the Rule 144A Securities to any person other than the Buyer or
another "qualified institutional buyer" as defined in Rule 144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the Seller, the
Trustee and the Master Servicer (as defined to the Pooling and Servicing Agreement, dated
as of September 1, 2005 (the "Agreement"), among the Company, EMC, Xxxxx Fargo Bank, N.A.,
as master servicer (the "Master Servicer"), and JPMorgan Chase Bank, National Association,
as trustee (the "Trustee")) as follows:
(a) The Buyer understands that the Rule 144A Securities have not been registered
under the 1933 Act or the securities laws of any state.
(b) The Buyer considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of investment in the Rule 144A Securities.
(c) The Buyer has been furnished with all information regarding the Rule 144A
Securities that it has requested from the Seller, the Trustee or the Master Servicer.
(d) Neither the Buyer nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Rule 144A Securities, any interest in the
Rule 144A Securities or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security from, or otherwise
approached or negotiated with respect to the Rule 144A Securities, any interest in
the Rule 144A Securities or any other similar security with, any person in any
manner, or made any general solicitation by means of general advertising or in any
other manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the disposition of the
Rule 144A Securities a violation of Section 5 of the 1933 Act or require registration
pursuant thereto, nor will it act, nor has it authorized or will it authorize any
person to act, in such manner with respect to the Rule 144A Securities.
(e) The Buyer is a "qualified institutional buyer" as that term is defined in Rule
144A under the 1933 Act and has completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that the sale
to it is being made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified institutional
buyer that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the 1933 Act.
[3. The Buyer (if the Rule 144A Securities are not rated at least "BBB-" or
its equivalent by Fitch, S&P or Xxxxx'x):
(a) is not an employee benefit or other plan subject to the prohibited transaction
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended (a
"Plan"), or any other person (including an investment manager, a named fiduciary or a
trustee of any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with "plan assets" of any Plan within the meaning of the Department of
Labor ("DOL") regulation at 29 C.F.R. § 2510.3-101; or
(b) is an insurance company, the source of funds to be used by it to purchase the
Certificates is an "insurance company general account" (within the meaning of DOL
Prohibited Transaction Class Exemption ("PTCE") 95-60), and the purchase is being
made in reliance upon the availability of the exemptive relief afforded under
Sections I and III of PTCE 95-60.]
4. This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so executed,
shall be deemed to be an original; such counterparts, together, shall constitute one
and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as of the
date set forth below.
Print Name of Seller Print Name of Buyer
By: By:
Name: Name:
Title: Title:
Taxpayer Identification Taxpayer Identification:
No. No:
Date: Date:
ANNEX 1 TO EXHIBIT F
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities Act of 1933
("Rule 144A") because (i) the Buyer owned and/or invested on a discretionary basis
$ in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A) and (ii) the Buyer satisfies the
criteria in the category marked below.
-- Corporation, etc. The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business trust,
partnership, or charitable organization described in Section 501(c)(3) of the
Internal Revenue Code.
-- Bank. The Buyer (a) is a national bank or banking institution organized under the
laws of any State, territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy
of which is attached hereto.
-- Savings and Loan. The Buyer (a) is a savings and loan association, building and loan
association, cooperative bank, homestead association or similar institution,
which is supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements.
-- Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934.
-- Insurance Company. The Buyer is an insurance company whose primary and predominant
business activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a State or territory
or the District of Columbia.
-- State or Local Plan. The Buyer is a plan established and maintained by a State, its
political subdivisions, or any agency or instrumentality of the State or its
political subdivisions, for the benefit of its employees.
-- ERISA Plan. The Buyer is an employee benefit plan within the meaning of Title I of
the Employee Retirement Income Security Act of 1974.
-- Investment Adviser. The Buyer is an investment adviser registered under the
Investment Advisers Act of 1940.
-- SBIC. The Buyer is a Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
-- Business Development Company. The Buyer is a business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940.
-- Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust company and
whose participants are exclusively (a) plans established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees, or (b)
employee benefit plans within the meaning of Title I of the Employee Retirement
Income Security Act of 1974, but is not a trust fund that includes as
participants individual retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities of issuers
that are affiliated with the Buyer, (ii) securities that are part of an unsold allotment to
or subscription by the Buyer, if the Buyer is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi)
securities owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Buyer, the Buyer used the cost of such securities
to the Buyer and did not include any of the securities referred to in the preceding
paragraph. Further, in determining such aggregate amount, the Buyer may have included
securities owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such subsidiaries are
managed under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and understands that
the seller to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to the Buyer may
be in reliance on Rule 144A.
Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees that, in
connection with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer will only
purchase for the account of a third party that at the time is a "qualified institutional
buyer" within the meaning of Rule 144A. In addition, the Buyer agrees that the Buyer will
not purchase securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate steps contemplated
by Rule 144A to conclude that such third party independently meets the definition of
"qualified institutional buyer" set forth in Rule 144A.
--------------------------------------------------------------------------------------------
7. The Buyer will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice is given, the
Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of this
certification as of the date of such purchase.
Print Name of Buyer
By:
Name:
Title:
Date:
EXHIBIT F-3
FORM OF TRANSFEROR REPRESENTATION LETTER
, 20
Structured Asset Mortgage Investments II Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2005-9
JPMorgan Chase Bank, National Association
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Bear Xxxxxxx Alt-A Trust 2005-9
Re: Mortgage Pass-Through Certificates, Series 2005-9
Ladies and Gentlemen:
In connection with the sale by (the "Seller") to
(the "Purchaser") of $ Initial Certificate Principal Balance
of Mortgage Pass-Through Certificates, Series 2005-9 (the "Certificates") pursuant to the
Pooling and Servicing Agreement, dated as of September 1, 2005 (the "Pooling and Servicing
Agreement"), among Structured Asset Mortgage Investments II Inc. (the "Company"), EMC
Mortgage Corporation ("EMC"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer"), and JPMorgan Chase Bank, National Association, as trustee (the "Trustee"). The
Seller hereby certifies, represents and warrants to, and covenants with, the Company and
the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered, pledged,
sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate
or any other similar security to any person in any manner, (b) has solicited any offer to
buy or to accept a pledge, disposition or other transfer of any Certificate, any interest
in any Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or (e) has
taken any other action, that (as to any of (a) through (e) above) would constitute a
distribution of the Certificates under the Securities Act of 1933 (the "Act"), that would
render the disposition of any Certificate a violation of Section 5 of the Act or any state
securities law, or that would require registration or qualification pursuant thereto. The
Seller will not act, in any manner set forth in the foregoing sentence with respect to any
Certificate. The Seller has not and will not sell or otherwise transfer any of the
Certificates, except in compliance with the provisions of the Pooling and Servicing
Agreement.
Very truly yours,
(Seller)
By:
Name:
Title:
-7-
EXHIBIT G
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to time, the
"Agreement"), dated as of September 30, 2005, by and among JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as trustee (including its successors under the Pooling and Servicing Agreement
defined below, the "Trustee"), STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., as company
(together with any successor in interest, the "Company"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as master servicer and securities administrator (together with any successor
in interest or successor under the Pooling and Servicing Agreement referred to below, the
"Master Servicer") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as custodian (together with
any successor in interest or any successor appointed hereunder, the "Custodian").
WITNESSETH THAT:
WHEREAS, the Company, EMC, the Master Servicer and the Trustee have entered
into a Pooling and Servicing Agreement, dated as of September 1, 2005, relating to the
issuance of Bear Xxxxxxx ALT-A Trust 2005-9, Mortgage Pass-Through Certificates, Series
2005-9 (as in effect on the date of this agreement, the "Original Pooling and Servicing
Agreement," and as amended and supplemented from time to time, the "Pooling and Servicing
Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for the
purposes of receiving and holding certain documents and other instruments delivered by the
Company or the Master Servicer under the Pooling and Servicing Agreement and the Servicers
under their respective Servicing Agreements, all upon the terms and conditions and subject
to the limitations hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the Trustee, the Company, the Master Servicer and the
Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement and not defined herein shall have the
meanings assigned in the Original Pooling and Servicing Agreement, unless otherwise
required by the context herein.
ARTICLE II
CUSTODY OF MORTGAGE DOCUMENTS
Section 2.1 Custodian to Act as Agent: Acceptance of Mortgage Files. The
Custodian, as the duly appointed agent of the Trustee for these purposes, acknowledges
(subject to any exceptions noted in the Initial Certification referred to in Section 2.3(a)
receipt of the Mortgage Files relating to the Mortgage Loans identified on the schedule
attached hereto (the "Mortgage Files") and declares that it holds and will hold such
Mortgage Files as agent for the Trustee, in trust, for the use and benefit of all present
and future Certificateholders.
Section 2.2 Recordation of Assignments. If any Mortgage File includes one or
more assignments of Mortgage to the Trustee in a state which is specifically excluded from
the Opinion of Counsel delivered by the Seller to the Trustee (with a copy to the
Custodian) pursuant to the provisions of Section 2.01 of the Pooling and Servicing
Agreement, each such assignment shall be delivered by the Custodian to the Company for the
purpose of recording it in the appropriate public office for real property records, and the
Company, at no expense to the Custodian, shall promptly cause to be recorded in the
appropriate public office for real property records each such assignment of Mortgage and,
upon receipt thereof from such public office, shall return each such assignment of Mortgage
to the Custodian.
Section 2.3 Review of Mortgage Files.
(1) On or prior to the Closing Date, in accordance with Section 2.02 of the Pooling and
Servicing Agreement, the Custodian shall deliver to the Trustee an Initial Certification in
the form annexed hereto as Exhibit One evidencing receipt (subject to any exceptions noted
therein) of a Mortgage File for each of the Mortgage Loans listed on the Schedule attached
hereto (the "Mortgage Loan Schedule").
(2) Within 90 days of the Closing Date, the Custodian agrees, for the benefit of
Certificateholders, to review, in accordance with the provisions of Section 2.02 of the
Pooling and Servicing Agreement, each such document, and shall deliver to the Seller and
the Trustee an Interim Certification in the form annexed hereto as Exhibit Two to the
effect that all such documents have been executed and received and that such documents
relate to the Mortgage Loans identified on the Mortgage Loan Schedule, except for any
exceptions listed on Schedule A attached to such Interim Certification. The Custodian shall
be under no duty or obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine, enforceable, or
appropriate for the represented purpose or that they have actually been recorded or that
they are other than what they purport to be on their face.
(3) Not later than 180 days after the Closing Date, the Custodian shall review the
Mortgage Files as provided in Section 2.02 of the Pooling and Servicing Agreement and
deliver to the Seller and the Trustee a Final Certification in the form annexed hereto as
Exhibit Three evidencing the completeness of the Mortgage Files.
(4) In reviewing the Mortgage Files as provided herein and in the Pooling and Servicing
Agreement, the Custodian shall make no representation as to and shall not be responsible to
verify (i) the validity, legality, enforceability, due authorization, recordability,
sufficiency or genuineness of any of the documents included in any Mortgage File or (ii)
the collectibility, insurability, effectiveness or suitability of any of the documents in
any Mortgage File.
Upon receipt of written request from the Trustee, the Custodian shall as soon as
practicable supply the Trustee with a list of all of the documents relating to the Mortgage
Loans missing from the Mortgage Files.
Section 2.4 Notification of Breaches of Representations and Warranties. Upon
discovery by the Custodian of a breach of any representation or warranty made by the
Company as set forth in the Pooling and Servicing Agreement with respect to a Mortgage Loan
relating to a Mortgage File, the Custodian shall give prompt written notice to the Company,
the related Servicer and the Trustee.
Section 2.5 Custodian to Cooperate: Release of Mortgage Files. Upon receipt of
written notice from the Trustee that the Mortgage Loan Seller has repurchased a Mortgage
Loan pursuant to Article II of the Pooling and Servicing Agreement, and that the purchase
price therefore has been deposited in the Master Servicer Collection Account or the
Distribution Account, then the Custodian agrees to promptly release to the Mortgage Loan
Seller the related Mortgage File.
Upon the Custodian's receipt of a request for release (a "Request for Release")
substantially in the form of Exhibit D to the Pooling and Servicing Agreement signed by a
Servicing Officer of the related Servicer stating that it has received payment in full of a
Mortgage Loan or that payment in full will be escrowed in a manner customary for such
purposes, the Custodian agrees promptly to release to the related Servicer the related
Mortgage File. The Company shall deliver to the Custodian and the Custodian agrees to
accept the Mortgage Note and other documents constituting the Mortgage File with respect to
any Substitute Mortgage Loan.
From time to time as is appropriate for the servicing or foreclosure of any
Mortgage Loan, including, for this purpose, collection under any Primary Mortgage Insurance
Policy, the related Servicer shall deliver to the Custodian a Request for Release signed by
a Servicing Officer requesting that possession of all of the Mortgage File be released to
the related Servicer and certifying as to the reason for such release and that such release
will not invalidate any insurance coverage provided in respect of the Mortgage Loan under
any of the Insurance Policies. Upon receipt of the foregoing, the Custodian shall deliver
the Mortgage File to the related Servicer. The related Servicer shall cause each Mortgage
File or any document therein so released to be returned to the Custodian when the need
therefore by the related Servicer no longer exists, unless (i) the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in the Master Servicer Collection Account or the Distribution Account or (ii) the Mortgage
File or such document has been delivered to an attorney, or to a public trustee or other
public official as required by law, for purposes of initiating or pursuing legal action or
other proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the related Servicer has delivered to the Custodian a certificate of a
Servicing Officer certifying as to the name and address of the Person to which such
Mortgage File or such document was delivered and the purpose or purposes of such delivery.
At any time that a Servicer is required to deliver to the Custodian a Request
for Release, the Servicer shall deliver two copies of the Request for Release if delivered
in hard copy or the Servicer may furnish such Request for Release electronically to the
Custodian, in which event the Servicing Officer transmitting the same shall be deemed to
have signed the Request for Release. In connection with any Request for Release of a
Mortgage File because of a repurchase of a Mortgage Loan, such Request for Release shall be
accompanied by an assignment of mortgage, without recourse, representation or warranty from
the Trustee to the Mortgage Loan Seller and the related Mortgage Note shall be endorsed
without recourse, representation or warranty by the Trustee (unless such Mortgage Note was
a MERS Loan and not endorsed to the Trustee) and be returned to the Mortgage Loan Seller.
In connection with any Request for Release of a Mortgage File because of the payment in
full of a Mortgage Loan, such Request for Release shall be accompanied by a certificate of
satisfaction or other similar instrument to be executed by or on behalf of the Trustee and
returned to the related Servicer.
Section 2.6 Assumption Agreements. In the event that any assumption agreement,
substitution of liability agreement or sale of servicing agreement is entered into with
respect to any Mortgage Loan subject to this Agreement in accordance with the terms and
provisions of the Pooling and Servicing Agreement, the Master Servicer, to the extent
provided in the related Servicing Agreement, shall cause the related Servicer to notify the
Custodian that such assumption or substitution agreement has been completed by forwarding
to the Custodian the original of such assumption or substitution agreement, which shall be
added to the related Mortgage File and, for all purposes, shall be considered a part of
such Mortgage File to the same extent as all other documents and instruments constituting
parts thereof.
ARTICLE III
CONCERNING THE CUSTODIAN
Section 3.1 Custodian as Bailee and Agent of the Trustee. With respect to each
Mortgage Note, Mortgage and other documents constituting each Mortgage File which are
delivered to the Custodian, the Custodian is exclusively the bailee and agent of the
Trustee and has no instructions to hold any Mortgage Note or Mortgage for the benefit of
any person other than the Trustee and the Certificateholders and undertakes to perform such
duties and only such duties as are specifically set forth in this Agreement. Except upon
compliance with the provisions of Section 2.5 of this Agreement, no Mortgage Note, Mortgage
or Mortgage File shall be delivered by the Custodian to the Company, the Servicers or the
Master Servicer or otherwise released from the possession of the Custodian.
Section 3.2 Reserved.
Section 3.3 Custodian May Own Certificates. The Custodian in its individual or
any other capacity may become the owner or pledgee of Certificates with the same rights it
would have if it were not Custodian.
Section 3.4 Master Servicer to Pay Custodian's Fees and Expenses. The Master
Servicer covenants and agrees to pay to the Custodian from time to time, and the Custodian
shall be entitled to, reasonable compensation for all services rendered by it in the
exercise and performance of any of the powers and duties hereunder of the Custodian, and
the Master Servicer will pay or reimburse the Custodian upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Custodian in accordance with
any of the provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in its employ),
except any such expense, disbursement or advance as may arise from its negligence or bad
faith or to the extent that such cost or expense is indemnified by the Company pursuant to
the Pooling and Servicing Agreement.
Section 3.5 Custodian May Resign Trustee May Remove Custodian. The Custodian
may resign from the obligations and duties hereby imposed upon it as such obligations and
duties relate to its acting as Custodian of the Mortgage Loans. Upon receiving such notice
of resignation, the Trustee shall either take custody of the Mortgage Files itself and give
prompt notice thereof to the Company, the Master Servicer and the Custodian, or promptly
appoint a successor Custodian by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Custodian and one copy to the successor
Custodian. If the Trustee shall not have taken custody of the Mortgage Files and no
successor Custodian shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Custodian may petition
any court of competent jurisdiction for the appointment of a successor Custodian.
The Trustee may remove the Custodian at any time with the consent of the Master
Servicer. In such event, the Trustee shall appoint, or petition a court of competent
jurisdiction to appoint, a successor Custodian hereunder. Any successor Custodian shall be
a depository institution subject to supervision or examination by federal or state
authority, shall be able to satisfy the other requirements contained in Section 3.7 and
shall be unaffiliated with the Servicer or the Company.
Any resignation or removal of the Custodian and appointment of a successor
Custodian pursuant to any of the provisions of this Section 3.5 shall become effective upon
acceptance of appointment by the successor Custodian. The Trustee shall give prompt notice
to the Company and the Master Servicer of the appointment of any successor Custodian. No
successor Custodian shall be appointed by the Trustee without the prior approval of the
Company and the Master Servicer.
Section 3.6 Merger or Consolidation of Custodian. Any Person into which the
Custodian may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Custodian shall be a
party, or any Person succeeding to the business of the Custodian, shall be the successor of
the Custodian hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Section 3.7 Representations of the Custodian. The Custodian hereby represents
that it is a depository institution subject to supervision or examination by a federal or
state authority, has a combined capital and surplus of at least $15,000,000 and is
qualified to do business in the jurisdictions in which it will hold any Mortgage File.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1 Notices. All notices, requests, consents and demands and other
communications required under this Agreement or pursuant to any other instrument or
document delivered hereunder shall be in writing and, unless otherwise specifically
provided, may be delivered personally, by telegram or telex, or by registered or certified
mail, postage prepaid, return receipt requested, at the addresses specified on the
signature page hereof (unless changed by the particular party whose address is stated
herein by similar notice in writing), in which case the notice will be deemed delivered
when received.
Section 4.2 Amendments. No modification or amendment of or supplement to this
Agreement shall be valid or effective unless the same is in writing and signed by all
parties hereto, and neither the Company, the Master Servicer nor the Trustee shall enter
into any amendment hereof except as permitted by the Pooling and Servicing Agreement. The
Trustee shall give prompt notice to the Custodian of any amendment or supplement to the
Pooling and Servicing Agreement and furnish the Custodian with written copies thereof.
Section 4.3 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.4 Recordation of Agreement. To the extent permitted by applicable
law, this Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which any or all
of the properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the Company and at
the Trust's expense, but only upon direction accompanied by an Opinion of Counsel
reasonably satisfactory to the Company to the effect that the failure to effect such
recordation is likely to materially and adversely affect the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 4.5 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the holders thereof.
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
Address: JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Trustee
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By:
Attention: Name:
Telecopy: Title:
Confirmation:
Address: STRUCTURED ASSET MORTGAGE INVESTMENTS
II INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By:
Name: Xxxxx Xxxxxxxxxxx
Title: Vice President
Address: XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
9062 Old Annapolis By:
Xxxxxxxx, Xxxxxxxx 00000 Name:
Attention: BSALTA 2005-9 Title:
Address: XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Custodian
0000 00xx Xxxxxx By:
Xxxxxxxxxxx, Xxxxxxxxx 00000 Name:
Attention: BSALTA 2005-9 Title:
Telecopier: (000) 000-0000
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the 31st day of August, 2005 before me, a notary public in and for said
State, personally appeared _________________, known to me to be a ___________________ of
JPMorgan Chase Bank, National Association, a national banking association that executed the
within instrument, and also known to me to be the person who executed it on behalf of said
association and acknowledged to me that such association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
___________________________________
Notary Public
[SEAL]
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
On the 31st day of August, 2005 before me, a notary public in and for said
State, personally appeared _____________, known to me to be a _______________ of Xxxxx
Fargo Bank, National Association, a national banking association that executed the within
instrument, and also known to me to be the person who executed it on behalf of said
national banking association, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
___________________________________
Notary Public
[SEAL]
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the 31st day of August, 2005 before me, a notary public in and for said
State, personally appeared Xxxxx Xxxxxxxxxxx, known to me to be a Vice President of
Structured Asset Mortgage Investments II Inc., one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
___________________________________
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
)ss.:
COUNTY OF XXXXXX )
On the 31st day of August, 2005 before me, a notary public in and for said
State, personally appeared _____________, known to me to be a/an _______________ of Xxxxx
Fargo Bank, National Association, a national banking association that executed the within
instrument, and also known to me to be the person who executed it on behalf of said
national banking association, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
___________________________________
Notary Public
[Notarial Seal]
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
__, 20__
-------------------------------------------------------------------------------
JPMorgan Chase Bank, National Structured Asset Mortgage Investments
Association II Inc.
0 Xxx Xxxx Xxxxx, 0xx Xxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
-------------------------------------------------------------------------------
Attention: Structured Asset Mortgage Investments II Inc.
Bear Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates, Series 2005-9
Re: Custodial Agreement, dated as of September 30, 2005, by and
among JPMorgan Chase Bank, National Association, Structured
Asset Mortgage Investments II Inc. and Xxxxx Fargo Bank,
National Association relating to Bear Xxxxxxx ALT-A Trust,
Mortgage Pass-Through Certificates, Series 2005-9
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial Agreement, and
subject to Section 2.02 of the Pooling and Servicing Agreement, the undersigned, as
Custodian, hereby certifies that it has received a Mortgage File (which contains an
original Mortgage Note or lost note affidavit) to the extent required in Section 2.01 of
the Pooling and Servicing Agreement with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, with any exceptions listed on Schedule A attached hereto.
Capitalized words and phrases used herein shall have the respective meanings
assigned to them in the above-captioned Custodial Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: _______________________________
Name:
Title:
EXHIBIT TWO
FORM OF CUSTODIAN INTERIM CERTIFICATION
_________, 20__
-------------------------------------------------------------------------------
JPMorgan Chase Bank, National Structured Asset Mortgage Investments
Association II Inc.
0 Xxx Xxxx Xxxxx, 0xx Xxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
-------------------------------------------------------------------------------
Attention: Structured Asset Mortgage Investments II Inc.
Bear Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates, Series 2005-9
Re: Custodial Agreement, dated as of September 30, 2005, by and
among JPMorgan Chase Bank, National Association, Structured
Asset Mortgage Investments II Inc. and Xxxxx Fargo Bank,
National Association relating to Bear Xxxxxxx ALT-A Trust,
Mortgage Pass-Through Certificates, Series 2005-9
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage File to the
extent required pursuant to Section 2.01 of the Pooling and Servicing Agreement with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule, and it has reviewed the
Mortgage File and the Mortgage Loan Schedule and has determined that: all required
documents have been executed and received and that such documents related to the Mortgage
Loans identified on the Mortgage Loan Schedule, with any exceptions listed on Schedule A
attached hereto.
Capitalized words and phrases used herein shall have the respective meanings
assigned to them in the above-captioned Custodial Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
EXHIBIT THREE
FORM OF CUSTODIAN FINAL CERTIFICATION
__________, 20__
-------------------------------------------------------------------------------
JPMorgan Chase Bank, National Structured Asset Mortgage Investments
Association II Inc.
0 Xxx Xxxx Xxxxx, 0xx Xxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
-------------------------------------------------------------------------------
Attention: Structured Asset Mortgage Investments II Inc.
Bear Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates, Series 2005-9
Re: Custodial Agreement, dated as of September 30, 2005, by and
among JPMorgan Chase Bank, National Association, Structured
Asset Mortgage Investments II Inc. and Xxxxx Fargo Bank,
National Association relating to Bear Xxxxxxx ALT-A Trust,
Mortgage Pass-Through Certificates, Series 2005-9
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial Agreement and
subject to Section 2.02(b) of the Pooling and Servicing Agreement, the undersigned, as
Custodian, hereby certifies that, subject to any exceptions listed on Schedule A attached
hereto, it has received a Mortgage File with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule containing with respect to each such Mortgage Loan:
(i) The original Mortgage Note, endorsed without recourse (A) to the order of
the Trustee or (B) in the case of a Mortgage Loan in the MERS System, in blank, and
in each case showing an unbroken chain of endorsements from the originator thereof to
the Person endorsing it to the Trustee or a lost note affidavit together with a copy
of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan,
noting the presence of the MIN and language indicating that such Mortgage Loan is a
MOM Loan, which shall have been recorded (or if the original is not available, a
copy), with evidence of such recording indicated thereon;
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the
assignment (which may be in the form of a blanket assignment if permitted in the
jurisdiction in which the Mortgaged Property is located) to "JPMorgan Chase Bank,
National Association, as Trustee," with evidence of recording with respect to each
Mortgage Loan in the name of the Trustee thereon;
(iv) all intervening assignments of the Security Instrument, if applicable and
only to the extent available to the Seller with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage
guaranty insurance, to the extent available, if any,
(vi) the original policy of title insurance or mortgagee's certificate of
title insurance or commitment or binder for title insurance, and
(vii) originals of all modification agreements, if applicable and available.
Capitalized words and phrases used herein shall have the respective meanings
assigned to them in the above-captioned Custodial Agreement or in the Pooling and Servicing
Agreement, as applicable.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
EXHIBIT H-1
COUNTRYWIDE SERVICING AGREEMENT
(Provided Upon Request)
EXHIBIT H-2
EMC SERVICING AGREEMENT
(Provided Upon Request)
EXHIBIT H-3
EVERHOME SERVICING AGREEMENT
(Provided Upon Request)
EXHIBIT H-4
GREENPOINT SERVICING AGREEMENT
(Provided Upon Request)
EXHIBIT H-5
HARBOURSIDE SERVICING AGREEMENT
(Provided Upon Request)
EXHIBIT H-6
HOMEBANC SERVICING AGREEMENT
(Provided Upon Request)
EXHIBIT H-7
NATIONAL CITY SERVICING AGREEMENT
(Provided Upon Request)
EXHIBIT H-8
PHH SERVICING AGREEMENT
(Provided Upon Request)
EXHIBIT H-9
SUNTRUST SERVICING AGREEMENT
(Provided Upon Request)
EXHIBIT X-00
XXXXXXXXXX SERVICING AGREEMENT
(Provided Upon Request)
EXHIBIT I
ASSIGNMENT AGREEMENTS
(See Tabs 8 through 16)
EXHIBIT J
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT
between
EMC MORTGAGE CORPORATION
as Mortgage Loan Seller
and
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
as Purchaser
Dated as of
September 30, 2005
Structured Asset Mortgage Investments II Inc.
Bear Xxxxxxx ALT-A Trust 2005-9, Mortgage Pass-Through Certificates
TABLE OF CONTENTS
Page
SECTION 1. Definitions....................................................1
SECTION 2. Purchase and Sale of the Mortgage Loans and Related Rights.....3
SECTION 3. Mortgage Loan Schedules........................................4
SECTION 4. Mortgage Loan Transfer.........................................4
SECTION 5. Examination of Mortgage Files..................................5
SECTION 6. Recordation of Assignments of Mortgage.........................7
SECTION 7. Representations and Warranties of Mortgage Loan Seller Concerning the
Mortgage Loans.....................................8
SECTION 8. Representations and Warranties Concerning the Mortgage Loan Seller. 13
SECTION 9. Representations and Warranties Concerning the Purchaser.......14
SECTION 10. Conditions to Closing..........................................15
SECTION 11. Fees and Expenses..............................................17
SECTION 12. Accountants' Letters...........................................17
SECTION 13. Indemnification................................................18
SECTION 14. Notices........................................................20
SECTION 15. Transfer of Mortgage Loans.....................................20
SECTION 16. Termination....................................................21
SECTION 17. Representations, Warranties and Agreements to Survive Delivery.20
SECTION 18. Severability...................................................21
SECTION 19. Counterparts...................................................21
SECTION 20. Amendment......................................................22
SECTION 21. Governing Law..................................................22
SECTION 22. Further Assurances.............................................23
SECTION 23. Successors and Assigns.........................................23
SECTION 24. The Mortgage Loan Seller and the Purchaser.....................21
SECTION 25. Entire Agreement...............................................21
SECTION 26. No Partnership.................................................22
EXHIBIT 1 CONTENTS OF MORTGAGE FILE...................................E-1
EXHIBIT 2 MORTGAGE LOAN SCHEDULE INFORMATION........................E-2-1
EXHIBIT 3 MORTGAGE LOAN SELLER'S INFORMATION..........................E-3
EXHIBIT 4 PURCHASER'S INFORMATION.....................................E-4
EXHIBIT 5 SCHEDULE OF LOST NOTES......................................E-5
EXHIBIT 6 Standard & Poor's LEVELS® Glossary, Version 5.6b Revised,
Appendix E..............................................E-6-1
SCHEDULE A REQUIRED RATINGS FOR EACH CLASS OF CERTIFICATES.............A-1
SCHEDULE B MORTGAGE LOAN SCHEDULE......................................B-1
EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 Contents of Mortgage File
Exhibit 2 Mortgage Loan Schedule Information
Exhibit 3 Mortgage Loan Seller's Information
Exhibit 4 Purchaser's Information
Exhibit 5 Schedule of Lost Notes
Exhibit 6 Standard & Poor's LEVELS® Glossary, Version 5.6b Revised, Appendix E
Schedule A Required Ratings for Each Class of Certificates
Schedule B Mortgage Loan Schedule
23
MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of September 30, 2005, as amended
and supplemented by any and all amendments hereto (collectively, the "Agreement"), by and
between EMC MORTGAGE CORPORATION, a Delaware corporation (the "Mortgage Loan Seller"), and
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., a Delaware corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement, the Mortgage
Loan Seller agrees to sell, and the Purchaser agrees to purchase, certain conventional,
adjustable rate, first lien mortgage loans secured primarily by one- to four-family
residential properties (collectively, the "Mortgage Loans") as described herein. The
Purchaser intends to deposit the Mortgage Loans into a trust fund (the "Trust Fund") and
create Bear Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates, Series 2005-9 (the
"Certificates"), under a pooling and servicing agreement, to be dated as of September 1,
2005 (the "Pooling and Servicing Agreement"), among the Purchaser, as seller, Xxxxx Fargo
Bank, National Association, as master servicer and securities administrator, JPMorgan Chase
Bank, National Association, as trustee (the "Trustee") and EMC Mortgage Corporation.
The Purchaser has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Number 333-120916) relating to its
Mortgage Pass-Through Certificates and the offering of certain series thereof (including
certain classes of the Certificates) from time to time in accordance with Rule 415 under
the Securities Act of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder (the "Securities Act"). Such registration statement, when it became
effective under the Securities Act, and the prospectus relating to the public offering of
certain classes of the Certificates by the Purchaser (the "Public Offering"), as from time
to time each is amended or supplemented pursuant to the Securities Act or otherwise, are
referred to herein as the "Registration Statement" and the "Prospectus," respectively. The
"Prospectus Supplement" shall mean that supplement, dated September 27, 2005 to the
Prospectus, dated December 20, 2004, relating to certain classes of the Certificates. With
respect to the Public Offering of certain classes of the Certificates, the Purchaser and
Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") have entered into a terms agreement dated as of
September 27, 2005 to an underwriting agreement dated July 29, 2003, between the Purchaser
and Bear Xxxxxxx (collectively, the "Underwriting Agreement").
Now, therefore, in consideration of the premises and the mutual agreements set
forth herein, the parties hereto agree as follows:
SECTION 1. Definitions. Certain terms are defined herein. Capitalized terms
used herein but not defined herein shall have the meanings specified in the Pooling and
Servicing Agreement. The following other terms are defined as follows:
Acquisition Price: Cash in amount agreed upon by the Mortgage Loan Seller and
the Purchaser
Bear Xxxxxxx: Bear, Xxxxxxx & Co. Inc.
Closing Date: September 30, 2005.
Cut-off Date: September 1, 2005.
Cut-off Date Balance: Approximately $2,497,584,757.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Substitute Mortgage Loan.
Due Date: With respect to each Mortgage Loan, the date in each month on which
its Scheduled Payment is due, if such due date is the first day of a month, and otherwise
is deemed to be the first day of the following month or such other date specified in the
related Servicing Agreement.
Master Servicer: Xxxxx Fargo Bank, National Association.
Moody's: Xxxxx'x Investors Service, Inc., or its successors in interest.
Mortgage: The mortgage or deed of trust creating a first lien on an interest in
real property securing a Mortgage Note.
Mortgage File: The items referred to in Exhibit 1 pertaining to a particular
Mortgage Loan and any additional documents required to be added to such documents pursuant
to this Agreement or the Pooling and Servicing Agreement.
Mortgage Interest Rate: The annual rate of interest borne by a Mortgage Note as
stated therein.
Mortgagor: The obligor(s) on a Mortgage Note.
Opinion of Counsel: A written opinion of counsel, who may be counsel for the
Mortgage Loan Seller or the Purchaser, reasonably acceptable to the Trustee.
Person: Any legal person, including any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Purchase Price: With respect to any Mortgage Loan (or any property acquired
with respect thereto) required to be purchased by the Mortgage Loan Seller pursuant to this
Agreement or Article II of the Pooling and Servicing Agreement, an amount equal to the sum
of (i)(a) 100% of the Outstanding Principal Balance of such Mortgage Loan as of the date of
repurchase (or if the related Mortgaged Property was acquired with respect thereto, 100% of
the Outstanding Principal Balance at the date of the acquisition), plus (b) accrued but
unpaid interest on the Outstanding Principal Balance at the related Mortgage Interest Rate,
through and including the last day of the month of repurchase, and reduced by (c) any
portion of the Master Servicing Compensation, Monthly Advances and advances payable to the
purchaser of the Mortgage Loan and (ii) any costs and damages (if any) incurred by the
Trust in connection with any violation of such Mortgage Loan of any anti-predatory lending
laws.
Rating Agencies: Standard & Poor's and Moody's, each a "Rating Agency."
Securities Act: The Securities Act of 1933, as amended.
Security Instrument: A written instrument creating a valid first lien on a
Mortgaged Property securing a Mortgage Note, which may be any applicable form of mortgage,
deed of trust, deed to secure debt or security deed, including any riders or addenda
thereto.
Standard & Poor's: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successors in interest.
Substitute Mortgage Loan: A mortgage loan substituted for a Deleted Mortgage
Loan which must meet on the date of such substitution the requirements stated herein and in
the Pooling and Servicing Agreement; upon such substitution, such mortgage loan shall be a
"Mortgage Loan" hereunder.
Value: The value of the Mortgaged Property at the time of origination of the
related Mortgage Loan, such value being the lesser of (i) the value of such property set
forth in an appraisal accepted by the applicable originator of the Mortgage Loan or (ii)
the sales price of such property at the time of origination.
SECTION 2...Purchase and Sale of the Mortgage Loans and Related Rights.
(i) Upon satisfaction of the conditions set forth in Section 10 hereof, the
Mortgage Loan Seller agrees to sell, and the Purchaser agrees to purchase Mortgage Loans
having an aggregate outstanding principal balance as of the Cut-off Date equal to the
Cut-off Date Balance.
(ii) The closing for the purchase and sale of the Mortgage Loans and the
closing for the issuance of the Certificates will take place on the Closing Date at the
office of the Purchaser's counsel in New York, New York or such other place as the parties
shall agree.
(iii) Upon the satisfaction of the conditions set forth in Section 10 hereof,
on the Closing Date, the Purchaser shall pay to the Mortgage Loan Seller the Acquisition
Price for the Mortgage Loans in immediately available funds by wire transfer to such
account or accounts as shall be designated by the Mortgage Loan Seller.
(iv) In addition to the foregoing, on the Closing Date the Mortgage Loan
Seller assigns to the Purchaser all of its right, title and interest in the Servicing
Agreements (other than its right to enforce the representations and warranties set forth
therein).
SECTION 3...Mortgage Loan Schedules. The Mortgage Loan Seller agrees to provide
to the Purchaser as of the date hereof a preliminary listing of the Mortgage Loans (the
"Preliminary Mortgage Loan Schedule") setting forth the information listed on Exhibit 2 to
this Agreement with respect to each of the Mortgage Loans being sold by the Mortgage Loan
Seller. If there are changes to the Preliminary Mortgage Loan Schedule, the Mortgage Loan
Seller shall provide to the Purchaser as of the Closing Date a final schedule (the "Final
Mortgage Loan Schedule") setting forth the information listed on Exhibit 2 to this
Agreement with respect to each of the Mortgage Loans being sold by the Mortgage Loan Seller
to the Purchaser. The Final Mortgage Loan Schedule shall be delivered to the Purchaser on
the Closing Date, shall be attached to an amendment to this Agreement to be executed on the
Closing Date by the parties hereto and shall be in form and substance mutually agreed to by
the Mortgage Loan Seller and the Purchaser (the "Amendment"). If there are no changes to
the Preliminary Mortgage Loan Schedule, the Preliminary Mortgage Loan Schedule shall be the
Final Mortgage Loan Schedule for all purposes hereof.
SECTION 4...Mortgage Loan Transfer.
(i) The Purchaser will be entitled to all scheduled payments of principal and
interest on the Mortgage Loans due after the Cut-off Date (regardless of when actually
collected) and all payments thereon, other than scheduled principal and interest, received
after the Cut-off Date. The Mortgage Loan Seller will be entitled to all scheduled payments
of principal and interest on the Mortgage Loans due on or before the Cut-off Date
(including payments collected after the Cut-off Date) and all payments thereon, other than
scheduled principal and interest, received on or before the Cut-off Date. Such principal
amounts and any interest thereon belonging to the Mortgage Loan Seller as described above
will not be included in the aggregate outstanding principal balance of the Mortgage Loans
as of the Cut-off Date as set forth on the Final Mortgage Loan Schedule.
(ii) Pursuant to various conveyance documents to be executed on the Closing
Date and pursuant to the Pooling and Servicing Agreement, the Purchaser will assign on the
Closing Date all of its right, title and interest in and to the Mortgage Loans to the
Trustee for the benefit of the Certificateholders. In connection with the transfer and
assignment of the Mortgage Loans, the Mortgage Loan Seller has delivered or will deliver or
cause to be delivered to the Trustee by the Closing Date or such later date as is agreed to
by the Purchaser and the Mortgage Loan Seller (each of the Closing Date and such later date
is referred to as a "Mortgage File Delivery Date"), the items of each Mortgage File,
provided, however, that in lieu of the foregoing, the Mortgage Loan Seller may deliver the
following documents, under the circumstances set forth below: (x) in lieu of the original
Security Instrument, assignments to the Trustee or intervening assignments thereof which
have been delivered, are being delivered or will, upon receipt of recording information
relating to the Security Instrument required to be included thereon, be delivered to
recording offices for recording and have not been returned to the Mortgage Loan Seller in
time to permit their delivery as specified above, the Mortgage Loan Seller may deliver a
true copy thereof with a certification by the Mortgage Loan Seller, on the face of such
copy, substantially as follows: "Certified to be a true and correct copy of the original,
which has been transmitted for recording" (y) in lieu of the Security Instrument,
assignments to the Trustee or intervening assignments thereof, if the applicable
jurisdiction retains the originals of such documents (as evidenced by a certification from
the Mortgage Loan Seller to such effect) the Mortgage Loan Seller may deliver photocopies
of such documents containing an original certification by the judicial or other
governmental authority of the jurisdiction where such documents were recorded; and (z) in
lieu of the Mortgage Notes relating to the Mortgage Loans, each identified in the list
delivered by the Purchaser to the Trustee on the Closing Date and attached hereto as
Exhibit 5, the Mortgage Loan Seller may deliver lost note affidavits and indemnities of the
Mortgage Loan Seller; and provided further, however, that in the case of Mortgage Loans
which have been prepaid in full after the Cut-off Date and prior to the Closing Date, the
Mortgage Loan Seller, in lieu of delivering the above documents, may deliver to the Trustee
a certification by the Mortgage Loan Seller or the Master Servicer to such effect. The
Mortgage Loan Seller shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) or such certified
copies to the Trustee promptly after they are received. The Mortgage Loan Seller shall
cause the Mortgage and intervening assignments, if any, and the assignment of the Security
Instrument to be recorded not later than 180 days after the Closing Date, unless such
assignment is not required to be recorded under the terms set forth in Section 6(i) hereof.
(iii) The Mortgage Loan Seller and the Purchaser acknowledge hereunder that all
of the Mortgage Loans and the related servicing will ultimately be assigned to JPMorgan
Chase Bank, National Association, as Trustee for the benefit of the Certificateholders, on
the date hereof.
SECTION 5...Examination of Mortgage Files.
(i) On or before the Mortgage File Delivery Date, the Mortgage Loan Seller
will have made the Mortgage Files available to the Purchaser or its agent for examination
which may be at the offices of the Trustee or the Mortgage Loan Seller and/or the Mortgage
Loan Seller's custodian. The fact that the Purchaser or its agent has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files shall not
affect the Purchaser's rights to demand cure, repurchase, substitution or other relief as
provided in this Agreement. In furtherance of the foregoing, the Mortgage Loan Seller shall
make the Mortgage Files available to the Purchaser or its agent from time to time so as to
permit the Purchaser to confirm the Mortgage Loan Seller's compliance with the delivery and
recordation requirements of this Agreement and the Pooling and Servicing Agreement. In
addition, upon request of the Purchaser, the Mortgage Loan Seller agrees to provide to the
Purchaser, Bear Xxxxxxx and to any investors or prospective investors in the Certificates
information regarding the Mortgage Loans and their servicing, to make the Mortgage Files
available to the Purchaser, Bear Xxxxxxx and to such investors or prospective investors
(which may be at the offices of the Mortgage Loan Seller and/or the Mortgage Loan Seller's
custodian) and to make available personnel knowledgeable about the Mortgage Loans for
discussions with the Purchaser, Bear Xxxxxxx and such investors or prospective investors,
upon reasonable request during regular business hours, sufficient to permit the Purchaser,
Bear Xxxxxxx and such investors or potential investors to conduct such due diligence as any
such party reasonably believes is appropriate.
(ii) Pursuant to the Pooling and Servicing Agreement, on the Closing Date the
Trustee, for the benefit of the Certificateholders, will review or cause the Custodian to
review items of the Mortgage Files as set forth on Exhibit 1 and will deliver or cause the
Custodian to deliver to the Mortgage Loan Seller an initial certification in the form
attached as Exhibit One to the Custodial Agreement.
(iii) Pursuant to the Pooling and Servicing Agreement, within 90 days of the
Closing Date, the Trustee will review or shall cause the Custodian to review items of the
Mortgage Files as set forth on Exhibit 1 and will deliver to the Mortgage Loan Seller and
the Master Servicer an interim certification substantially in the form of Exhibit Two to
the Custodial Agreement.
(iv) Pursuant to the Pooling and Servicing Agreement, within 180 days of the
Closing Date (or, with respect to any Substitute Mortgage Loan, within five Business Days
after the receipt by the Trustee or Custodian thereof) the Trustee will review or cause the
Custodian to review items of the Mortgage Files as set forth on Exhibit 1 and will deliver
to the Mortgage Loan Seller and the Master Servicer a final certification substantially in
the form of Exhibit Three to the Custodial Agreement. If the Trustee is unable to deliver a
final certification with respect to the items listed in Exhibit 1 due to any document that
is missing, has not been executed, is unrelated, determined on the basis of the Mortgagor
name, original principal balance and loan number, to the Mortgage Loans identified in the
Final Mortgage Loan Schedule (a "Material Defect"), the Trustee or the Custodian, as its
agent, shall promptly notify the Mortgage Loan Seller of such Material Defect. The Mortgage
Loan Seller shall correct or cure any such Material Defect within 90 days from the date of
notice from the Trustee or the Custodian, as its agent, of the Material Defect and if the
Mortgage Loan Seller does not correct or cure such Material Defect within such period and
such defect materially and adversely affects the interests of the Certificateholders in the
related Mortgage Loan, the Mortgage Loan Seller will, in accordance with the terms of the
Pooling and Servicing Agreement, within 90 days of the date of notice, provide the Trustee
with a Substitute Mortgage Loan (if within two years of the Closing Date) or purchase the
related Mortgage Loan at the applicable Purchase Price; provided that, if such defect would
cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days
from the date such breach was discovered; provided, however, that if such defect relates
solely to the inability of the Mortgage Loan Seller to deliver the original security
instrument or intervening assignments thereof, or a certified copy because the originals of
such documents, or a certified copy, have not been returned by the applicable jurisdiction,
the Mortgage Loan Seller shall not be required to purchase such Mortgage Loan if the
Mortgage Loan Seller delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing Date. The foregoing
repurchase obligation shall not apply in the event that the Mortgage Loan Seller cannot
deliver such original or copy of any document submitted for recording to the appropriate
recording office in the applicable jurisdiction because such document has not been returned
by such office; provided that the Mortgage Loan Seller shall instead deliver a recording
receipt of such recording office or, if such receipt is not available, a certificate of
Mortgage Loan Seller or a Servicing Officer confirming that such documents have been
accepted for recording, and delivery to the Trustee or the Custodian, as its agent, shall
be effected by the Mortgage Loan Seller within thirty days of its receipt of the original
recorded document.
(v) At the time of any substitution, the Mortgage Loan Seller shall deliver
or cause to be delivered the Substitute Mortgage Loan, the related Mortgage File and any
other documents and payments required to be delivered in connection with a substitution
pursuant to the Pooling and Servicing Agreement. At the time of any purchase or
substitution, the Trustee shall (i) assign to the Mortgage Loan Seller and release or cause
the Custodian to release the documents (including, but not limited to, the Mortgage,
Mortgage Note and other contents of the Mortgage File) in its possession or in the
possession of the Custodian relating to the Deleted Mortgage Loan and (ii) execute and
deliver such instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Mortgage Loan Seller title to such Deleted Mortgage Loan.
SECTION 6...Recordation of Assignments of Mortgage.
(i) The Mortgage Loan Seller shall, promptly after the Closing Date, cause
each Mortgage and each assignment of Mortgage from the Mortgage Loan Seller to the Trustee,
and all unrecorded intervening assignments, if any, delivered on or prior to the Closing
Date, to be recorded in all recording offices in the jurisdictions where the related
Mortgaged Properties are located; provided, however, the Mortgage Loan Seller need not
cause to be recorded any assignment which relates to a Mortgage Loan if (a) such
recordation is not required by the Rating Agencies or an Opinion of Counsel has been
provided to the Trustee which states that the recordation of such assignment is not
necessary to protect the Trustee's interest in the related Mortgage Loan or (b) MERS is
identified on the Mortgage or a properly recorded assignment of the Mortgage, as the
Mortgagee of record solely as nominee for the Mortgage Loan Seller and its successors and
assigns; provided, however, notwithstanding the delivery of any Opinion of Counsel, each
assignment of Mortgage shall be submitted for recording by the Mortgage Loan Seller in the
manner described above, at no expense to the Trust Fund or Trustee, upon the earliest to
occur of (i) reasonable direction by the Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the Trust, (ii) the occurrence of an
Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating
to the Mortgage Loan Seller and (iv) the occurrence of a servicing transfer as described in
Section 8.02 of the Pooling and Servicing Agreement.
While each such Mortgage or assignment is being recorded, if necessary, the
Mortgage Loan Seller shall leave or cause to be left with the Trustee a certified copy of
such Mortgage or assignment. In the event that, within 180 days of the Closing Date, the
Trustee has not been provided an Opinion of Counsel as described above or received evidence
of recording with respect to each Mortgage Loan delivered to the Purchaser pursuant to the
terms hereof or as set forth above, the failure to provide evidence of recording or such
Opinion of Counsel (in the alternative, if required) shall be considered a Material Defect,
and the provisions of Section 5(iii) and (iv) shall apply. All customary recording fees and
reasonable expenses relating to the recordation of the assignments of mortgage to the
Trustee or the Opinion of Counsel, as the case may be, shall be borne by the Mortgage Loan
Seller.
(ii) It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser, as contemplated by this
Agreement be, and be treated as, a sale. It is, further, not the intention of the parties
that such conveyance be deemed a pledge of the Mortgage Loans by the Mortgage Loan Seller
to the Purchaser to secure a debt or other obligation of the Mortgage Loan Seller. However,
in the event that, notwithstanding the intent of the parties, the Mortgage Loans are held
by a court to continue to be property of the Mortgage Loan Seller, then (a) this Agreement
shall also be deemed to be a security agreement within the meaning of Articles 9 of the
applicable Uniform Commercial Code; (b) the transfer of the Mortgage Loans provided for
herein shall be deemed to be a grant by the Mortgage Loan Seller to the Purchaser of a
security interest in all of the Mortgage Loan Seller's right, title and interest in and to
the Mortgage Loans and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other property, to the
extent the Purchaser would otherwise be entitled to own such Mortgage Loans and proceeds
pursuant to Section 4 hereof, including all amounts, other than investment earnings, from
time to time held or invested in any accounts created pursuant to the Pooling and Servicing
Agreement, whether in the form of cash, instruments, securities or other property; (c) the
possession by the Purchaser or the Trustee of Mortgage Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-313 (or comparable provision) of the applicable Uniform
Commercial Code; and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property, shall be
deemed notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser for the purpose of
perfecting such security interest under applicable law. Any assignment of the interest of
the Purchaser pursuant to any provision hereof or pursuant to the Pooling and Servicing
Agreement shall also be deemed to be an assignment of any security interest created hereby.
The Mortgage Loan Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be reasonably necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the Pooling and
Servicing Agreement.
SECTION 7...Representations and Warranties of Mortgage Loan Seller Concerning
the Mortgage Loans. The Mortgage Loan Seller hereby represents and warrants to the
Purchaser as of the Closing Date or such other date as may be specified below with respect
to each Mortgage Loan being sold by it:
(i) the information set forth in the Mortgage Loan Schedule hereto is true
and correct in all material respects and the information provided to the Rating Agencies,
including the Mortgage Loan level detail, is true and correct according to the Rating
Agency requirements;
(ii) immediately prior to the transfer to the Purchaser, the Mortgage Loan
Seller was the sole owner of beneficial title and holder of each Mortgage and Mortgage Note
relating to the Mortgage Loans and is conveying the same to the Purchaser free and clear of
any and all liens, claims, encumbrances, participation interests, equities, pledges,
charges or security interests of any nature and the Mortgage Loan Seller has full right and
authority to sell or assign the same pursuant to this Agreement;
(iii) each Mortgage Loan at the time it was made complied in all material
respects with all applicable laws and regulations, including, without limitation, usury,
equal credit opportunity, disclosure and recording laws and all predatory lending laws; and
each Mortgage Loan has been serviced in all material respects in accordance with all
applicable laws and regulations, including, without limitation, usury, equal credit
opportunity, disclosure and recording laws and all predatory lending laws and the terms of
the related Mortgage Note, the Mortgage and other loan documents;
(iv) there is no monetary default existing under any Mortgage or the related
Mortgage Note and there is no material event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default, breach or event
of acceleration; and neither the Mortgage Loan Seller, any of its affiliates nor any
servicer of any related Mortgage Loan has taken any action to waive any default, breach or
event of acceleration; no foreclosure action is threatened or has been commenced with
respect to the Mortgage Loan;
(v) the terms of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or modified in any respect, except by written instruments, (i) if required
by law in the jurisdiction where the Mortgaged Property is located, or (ii) to protect the
interests of the Trustee on behalf of the Certificateholders;
(vi) no selection procedure reasonably believed by the Mortgage Loan Seller to
be adverse to the interests of the Certificateholders was utilized in selecting the
Mortgage Loans;
(vii) each Mortgage is a valid and enforceable first lien on the property
securing the related Mortgage Note and each Mortgaged Property is owned by the Mortgagor in
fee simple (except with respect to common areas in the case of condominiums, PUDs and de
minimis PUDs) or by leasehold for a term longer than the term of the related Mortgage,
subject only to (i) the lien of current real property taxes and assessments, (ii)
covenants, conditions and restrictions, rights of way, easements and other matters of
public record as of the date of recording of such Mortgage, such exceptions being
acceptable to mortgage lending institutions generally or specifically reflected in the
appraisal obtained in connection with the origination of the related Mortgage Loan or
referred to in the lender's title insurance policy delivered to the originator of the
related Mortgage Loan and (iii) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security intended to be provided
by such Mortgage;
(viii) there is no mechanics' lien or claim for work, labor or material affecting the
premises subject to any Mortgage which is or may be a lien prior to, or equal with, the
lien of such Mortgage except those which are insured against by the title insurance policy
referred to in (xiii) below;
(ix) there was no delinquent tax or assessment lien against the property subject to any
Mortgage, except where such lien was being contested in good faith and a stay had been
granted against levying on the property;
(x) there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal and interest on such
Mortgage Note;
(xi) the physical property subject to any Mortgage is free of material damage and is in
good repair and there is no proceeding pending or threatened for the total or partial
condemnation of any Mortgaged Property;
(xii) the Mortgaged Property and all improvements thereon comply with all requirements of
any applicable zoning and subdivision laws and ordinances;
(xiii) a lender's title insurance policy (on an ALTA or CLTA form) or binder, or other
assurance of title customary in the relevant jurisdiction therefor in a form acceptable to
Xxxxxx Xxx or Xxxxxxx Mac, was issued on the date that each Mortgage Loan was created by a
title insurance company which was qualified to do business in the jurisdiction where the
related Mortgaged Property is located, insuring the Mortgage Loan Seller and its successors
and assigns that the Mortgage is a first priority lien on the related Mortgaged Property in
the original principal amount of the Mortgage Loan. The Mortgage Loan Seller is the sole
insured under such lender's title insurance policy, and such policy, binder or assurance is
valid and remains in full force and effect, and each such policy, binder or assurance shall
contain all applicable endorsements including a negative amortization endorsement, if
applicable;
(xiv) at the time of origination, each Mortgaged Property was the subject of an appraisal
which conformed to the underwriting requirements of the originator of the Mortgage Loan;
(xv) the improvements on each Mortgaged Property securing a Mortgage Loan are insured (by
an insurer which is acceptable to the Mortgage Loan Seller) against loss by fire and such
hazards as are covered under a standard extended coverage endorsement in the locale in
which the Mortgaged Property is located, in an amount which is not less than the lesser of
the maximum insurable value of the improvements securing such Mortgage Loan or the
outstanding principal balance of the Mortgage Loan, but in no event in an amount less than
an amount that is required to prevent the Mortgagor from being deemed to be a co-insurer
thereunder; if the improvement on the Mortgaged Property is a condominium unit, it is
included under the coverage afforded by a blanket policy for the condominium project; if
upon origination of the related Mortgage Loan, the improvements on the Mortgaged Property
were in an area identified as a federally designated flood area, a flood insurance policy
is in effect in an amount representing coverage not less than the least of (i) the
outstanding principal balance of the Mortgage Loan, (ii) the restorable cost of
improvements located on such Mortgaged Property or (iii) the maximum coverage available
under federal law; and each Mortgage obligates the Mortgagor thereunder to maintain the
insurance referred to above at the Mortgagor's cost and expense;
(xvi) each Mortgage Loan constitutes a "qualified mortgage" under Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5) and (6);
(xvii) each Mortgage Loan was originated (a) by a savings and loan association,
savings bank, commercial bank, credit union, insurance company or similar institution that
is supervised and examined by a federal or state authority, (b) by a mortgagee approved by
the Secretary of HUD pursuant to Sections 203 and 211 of the National Housing Act, as
amended, or (c) by a mortgage broker or correspondent lender in a manner such that the
related Mortgage Loan would be regarded for purposes of Section 3(a)(41) of the Securities
Exchange Act of 1934, as amended, as having been originated by an entity described in
clauses (a) or (b) above;
(xviii) none of the Mortgage Loans are (a) loans subject to 12 CFR Part 226.31, 12 CFR
Part 226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation implementing TILA, which
implements the Home Ownership and Equity Protection Act of 1994, as amended or (b) "high
cost home," "covered" (excluding home loans defined as "covered home loans" in the New
Jersey Home Ownership Security Act of 2002 that were originated between November 26, 2003
and July 7, 2004), "high risk home" or "predatory" loans under any applicable state,
federal or local law (or a similarly classified loan using different terminology under a
law imposing heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees);
(xix) no Mortgage Loan (a) is a "high cost loan" or "covered loan" as applicable (as such
terms are defined in Standard & Poor's LEVELS® Glossary, Version 5.6c Revised as of July
11, 2005, Appendix E, attached hereto as Exhibit 6 or (b) was originated on or after
October 1, 2002 through March 6, 2003 and is governed by the Georgia Fair Lending Act;
(xx) the information set forth in Schedule A of the Prospectus Supplement with respect to
the Mortgage Loans is true and correct in all material respects;
(xxi) with respect to each Mortgage Loan in Sub-Loan Group II-2, 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;
(xxii) none of the Mortgage Loans in Sub-Loan Group II-2 impose a prepayment penalty
for a term in excess of five years from the origination date;
(xxiii) with respect to each Mortgage Loan in Sub-Loan Group II-2, information regarding
the borrower credit files related to such Mortgage Loan has been furnished to credit
reporting agencies in compliance with the provisions of the Fair Credit Reporting Act and
the applicable implementing regulations;
(xxiv) each Mortgage Loan was originated in accordance with the underwriting
guidelines of the related originator;
(xxv) each original Mortgage has been recorded or is in the process of being recorded in
accordance with the requirements of Section 2.01 of the Pooling and Servicing Agreement in
the appropriate jurisdictions wherein such recordation is required to perfect the lien
thereof for the benefit of the Trust Fund;
(xxvi) the related Mortgage File contains each of the documents and instruments listed
in Section 2.01 of the Pooling and Servicing Agreement, subject to any exceptions,
substitutions and qualifications as are set forth in such Section;
(xxvii) the Mortgage Loans are currently being serviced in accordance with accepted
servicing practices;
(xxiii) at the time of origination, each Mortgaged Property was the subject of an
appraisal which conformed to the underwriting requirements of the originator of the
Mortgage Loan, and the appraisal is in a form which was acceptable to Xxxxxx Mae or FHLMC
at the time of origination;
(xxix) none of the Mortgage Loans that are secured by property located in the State of
Illinois are in violation of the provisions of the Illinois Interest Act;
(xxx) with respect to each Mortgage Loan that has a prepayment penalty feature, each such
prepayment penalty is enforceable and will be enforced by the Mortgage Loan Seller and each
prepayment penalty is permitted pursuant to federal, state and local law, provided that (i)
no Mortgage Loan will impose a prepayment penalty for a term in excess of five years from
the date such Mortgage Loan was originated and (ii) such prepayment penalty is at least
equal to the lesser of (A) the maximum amount permitted under applicable law and (B) six
months interest at the related Mortgage Interest Rate on the amount prepaid in excess of
20% of the original principal balance of such Mortgage Loan;
(xxxi) with respect to each Mortgage Loan in Sub-Loan Group II-2 and originated on or
after September 1, 2004, neither the related Mortgage nor the related Mortgage Note
requires the borrower to submit to arbitration to resolve any dispute arising out of or
relating in any way to the origination of such Mortgage Loan;
(xxxii) no Mortgage Loan in Sub-Loan Group II-2 is a balloon mortgage loan that has an
original stated maturity of less than seven (7) years;
(xxxiii) no Mortgage Loan in Sub-Loan Group II-2 that was originated on or after October
31, 2004, is subject to mandatory arbitration except when the terms of the arbitration also
contain a waiver provision that provides that in the event of a sale or transfer of such
Mortgage Loan or interest in such Mortgage Loan to Xxxxxx Xxx, the terms of the arbitration
are null and void and cannot be reinstated. The Seller hereby agrees that the Seller or
the Servicer of the Mortgage Loans in Sub-Loan Group II-2 will notify the borrower in
writing within 60 days of the sale or transfer of such Mortgage Loan to Xxxxxx Mae that the
terms of arbitration are null and void;
(xxxiv) no borrower of a Mortgage Loan in Sub-Loan Group II-2 was encouraged or required to
select a product offered by such Mortgage Loan's originator which is a higher cost product
designed for less creditworthy borrowers, unless at the time of such Mortgage Loan's
origination, such borrower did not qualify taking into account credit history and
debt-to-income ratios for a lower-cost credit product then offered by the Mortgage Loan's
originator or any affiliate of that originator. If, at the time of loan application, the
borrower may have qualified for a lower-cost product than offered by any mortgage lending
affiliate of the Sub-Loan Group II-2's originator, then such originator referred the
borrower's application to such affiliate for underwriting consideration;
(xxxv) the methodology used in underwriting the extension of credit for each Mortgage Loan
in Sub-Loan Group II-2 employs objective mathematical principles which relate the
borrower's income, assets and liabilities to the proposed payment and such underwriting
methodology does not rely on the extent of the borrower's equity in the collateral as the
principal determining factor in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination (application/approval) the borrower
had a reasonable ability to make timely payments on such Mortgage Loan;
(xxxvi) With respect to any Mortgage Loan in Sub-Loan Group II-2 that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity: (i) prior to such
loan's origination, the borrower agreed to such premium in exchange for a monetary benefit,
including but not limited to a rate or fee reduction, (ii) prior to such loan's
origination, the borrower was offered the option of obtaining a mortgage loan that did not
require payment of such a premium, (iii) for loans originated on or after September 1,
2004, the duration of the prepayment period shall not exceed three (3) years from the date
of the note, unless the loan was modified to reduce the prepayment period to no more than
three years from the date of the note and the borrower was notified in writing of such
reduction in prepayment period;
(xxxvii) no proceeds from any Mortgage Loan in Sub-Loan Group II-2 were used to purchase
single premium credit insurance policies or debt cancellation agreements as part of the
origination of, or as a condition to closing, such Mortgage Loan in Sub-Loan Group II-2;
(xxxviii) all points and fees related to each Mortgage Loan in Sub-Loan Group II-2 were
disclosed in writing to the mortgagor in accordance with applicable state and federal law
and regulation. Except in the case of a Mortgage Loan in Sub-Loan Group II-2 in an
original principal amount of less than $60,000 which would have resulted in an unprofitable
origination, no mortgagor was charged "points and fees" (whether or not financed) in an
amount greater than 5% of the principal amount of such loan and such 5% limitation is
calculated in accordance with Xxxxxx Mae's anti-predatory lending requirements as set forth
in the Xxxxxx Mae Selling Guide; and
(xxxix) all fees and charges (including finance charges) and whether or not financed,
assessed, collected or to be collected in connection with the origination and
servicing of each Mortgage Loan in Sub-Loan Group II-2 has been disclosed in
writing to the borrower in accordance with applicable state and federal law and
regulation.
It is understood and agreed that the representations and warranties set forth
in this Section 7 will inure to the benefit of the Purchaser, its successors and assigns,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or assignment
of Mortgage or the examination of any Mortgage File. Upon any substitution for a Mortgage
Loan, the representations and warranties set forth above shall be deemed to be made by the
Mortgage Loan Seller as to any Substitute Mortgage Loan as of the date of substitution.
Upon discovery or receipt of notice by the Mortgage Loan Seller, the Purchaser
or the Trustee of a breach of any representation or warranty of the Mortgage Loan Seller
set forth in this Section 7 which materially and adversely affects the value of the
interests of the Purchaser, the Certificateholders or the Trustee in any of the Mortgage
Loans delivered to the Purchaser pursuant to this Agreement, the party discovering or
receiving notice of such breach shall give prompt written notice to the others. In the case
of any such breach of a representation or warranty set forth in this Section 7, within 90
days from the date of discovery by the Mortgage Loan Seller, or the date the Mortgage Loan
Seller is notified by the party discovering or receiving notice of such breach (whichever
occurs earlier), the Mortgage Loan Seller will (i) cure such breach in all material
respects, (ii) purchase the affected Mortgage Loan at the applicable Purchase Price or
(iii) if within two years of the Closing Date, substitute a qualifying Substitute Mortgage
Loan in exchange for such Mortgage Loan. The obligations of the Mortgage Loan Seller to
cure, purchase or substitute a qualifying Substitute Mortgage Loan shall constitute the
Purchaser's, the Trustee's and the Certificateholder's sole and exclusive remedies under
this Agreement or otherwise respecting a breach of representations or warranties hereunder
with respect to the Mortgage Loans, except for the obligation of the Mortgage Loan Seller
to indemnify the Purchaser for such breach as set forth in and limited by Section 13
hereof. It is understood by the parties hereto that a breach of the representations and
warranties made in any of clause (xviii), (xix)(b), (xxi), (xxii), (xxiii) or (xxxi) of
this Section 7 will be deemed to materially and adversely affect the value of the interests
of the Purchaser, the Certificateholders or the Trustee in the related Mortgage Loan.
Any cause of action against the Mortgage Loan Seller relating to or arising out
of a breach by the Mortgage Loan Seller of any representations and warranties made in this
Section 7 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Mortgage Loan Seller or notice thereof by the party discovering such breach and (ii)
failure by the Mortgage Loan Seller to cure such breach, purchase such Mortgage Loan or
substitute a qualifying Substitute Mortgage Loan pursuant to the terms hereof.
SECTION 8..Representations and Warranties Concerning the Mortgage Loan Seller.
As of the date hereof and as of the Closing Date, the Mortgage Loan Seller represents and
warrants to the Purchaser as to itself in the capacity indicated as follows:
(i) the Mortgage Loan Seller (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and (ii) is qualified
and in good standing to do business in each jurisdiction where such qualification is
necessary, except where the failure so to qualify would not reasonably be expected to have
a material adverse effect on the Mortgage Loan Seller's business as presently conducted or
on the Mortgage Loan Seller's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(ii) the Mortgage Loan Seller has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform its obligations
under this Agreement;
(iii) the execution and delivery by the Mortgage Loan Seller of this Agreement
has been duly authorized by all necessary action on the part of the Mortgage Loan Seller;
and neither the execution and delivery of this Agreement, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on the Mortgage Loan
Seller or its properties or the charter or by-laws of the Mortgage Loan Seller, except
those conflicts, breaches or defaults which would not reasonably be expected to have a
material adverse effect on the Mortgage Loan Seller's ability to enter into this Agreement
and to consummate the transactions contemplated hereby;
(iv) the execution, delivery and performance by the Mortgage Loan Seller of
this Agreement and the consummation of the transactions contemplated hereby do not require
the consent or approval of, the giving of notice to, the registration with, or the taking
of any other action in respect of, any state, federal or other governmental authority or
agency, except those consents, approvals, notices, registrations or other actions as have
already been obtained, given or made and, in connection with the recordation of the
Mortgages, powers of attorney or assignments of Mortgages not yet completed;
(v) this Agreement has been duly executed and delivered by the Mortgage Loan
Seller and, assuming due authorization, execution and delivery by the Purchaser,
constitutes a valid and binding obligation of the Mortgage Loan Seller enforceable against
it in accordance with its terms (subject to applicable bankruptcy and insolvency laws and
other similar laws affecting the enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the knowledge
of the Mortgage Loan Seller, threatened against the Mortgage Loan Seller, before or by any
court, administrative agency, arbitrator or governmental body (i) with respect to any of
the transactions contemplated by this Agreement or (ii) with respect to any other matter
which in the judgment of the Mortgage Loan Seller could reasonably be expected to be
determined adversely to the Mortgage Loan Seller and if determined adversely to the
Mortgage Loan Seller materially and adversely affect the Mortgage Loan Seller's ability to
perform its obligations under this Agreement; and the Mortgage Loan Seller is not in
default with respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions contemplated by
this Agreement; and
(vii) the Mortgage Loan Seller's Information (identified in Exhibit 3 hereof)
does not include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances under which
they were made, not misleading.
SECTION 9...Representations and Warranties Concerning the Purchaser. As of the
date hereof and as of the Closing Date, the Purchaser represents and warrants to the
Mortgage Loan Seller as follows:
(i) the Purchaser (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and (ii) is qualified and in good
standing as a foreign corporation to do business in each jurisdiction where such
qualification is necessary, except where the failure so to qualify would not reasonably be
expected to have a material adverse effect on the Purchaser's business as presently
conducted or on the Purchaser's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(ii) the Purchaser has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform its obligations under
this Agreement;
(iii) the execution and delivery by the Purchaser of this Agreement have been
duly authorized by all necessary corporate action on the part of the Purchaser; and neither
the execution and delivery of this Agreement, nor the consummation of the transactions
herein contemplated, nor compliance with the provisions hereof, will conflict with or
result in a breach of, or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Purchaser or its
properties or the articles of incorporation or by-laws of the Purchaser, except those
conflicts, breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Purchaser's ability to enter into this Agreement and to consummate
the transactions contemplated hereby;
(iv) the execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby do not require the
consent or approval of, the giving of notice to, the registration with, or the taking of
any other action in respect of, any state, federal or other governmental authority or
agency, except those consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the Purchaser and,
assuming due authorization, execution and delivery by the Mortgage Loan Seller, constitutes
a valid and binding obligation of the Purchaser enforceable against it in accordance with
its terms (subject to applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the knowledge
of the Purchaser, threatened against the Purchaser, before or by any court, administrative
agency, arbitrator or governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other matter which in the
judgment of the Purchaser will be determined adversely to the Purchaser and will if
determined adversely to the Purchaser materially and adversely affect the Purchaser's
ability to perform its obligations under this Agreement; and the Purchaser is not in
default with respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions contemplated by
this Agreement; and
(vii) the Purchaser's Information (identified in Exhibit 4 hereof) does not
include any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in light of the circumstances under which they were
made, not misleading.
SECTION 10. Conditions to Closing.
(1) The obligations of the Purchaser under this Agreement will be subject to
the satisfaction, on or prior to the Closing Date, of the following conditions:
(a) Each of the obligations of the Mortgage Loan Seller required to be
performed at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects; all of the
representations and warranties of the Mortgage Loan Seller under this Agreement shall
be true and correct as of the date or dates specified in all material respects; and
no event shall have occurred which, with notice or the passage of time, would
constitute a default under this Agreement, or the Pooling and Servicing Agreement;
and the Purchaser shall have received certificates to that effect signed by
authorized officers of the Mortgage Loan Seller.
(b) The Purchaser shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to the
Purchaser, duly executed by all signatories other than the Purchaser as required
pursuant to the respective terms thereof:
(i) If required pursuant to Section 3 hereof, the Amendment dated
as of the Closing Date and any documents referred to therein;
(ii) If required pursuant to Section 3 hereof, the Final Mortgage
Loan Schedule containing the information set forth on Exhibit 2 hereto, one
copy to be attached to each counterpart of the Amendment;
(iii) The Pooling and Servicing Agreement, in form and substance
reasonably satisfactory to the Trustee and the Purchaser, and all documents
required thereby duly executed by all signatories;
(iv) A certificate of an officer of the Mortgage Loan Seller dated
as of the Closing Date, in a form reasonably acceptable to the Purchaser, and
attached thereto copies of the charter and by-laws of the Mortgage Loan Seller
and evidence as to the good standing of the Mortgage Loan Seller dated as of a
recent date;
(v) One or more opinions of counsel from the Mortgage Loan
Seller's counsel otherwise in form and substance reasonably satisfactory to the
Purchaser, the Trustee and each Rating Agency;
(vi) A letter from each of the Rating Agencies giving each Class
of Certificates set forth on Schedule A hereto the rating set forth therein; and
(vii) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary to
secure the intended ratings from each Rating Agency for the Certificates.
(c) The Certificates to be sold to Bear Xxxxxxx pursuant to the
Underwriting Agreement and the Purchase Agreement, if applicable, shall have been
issued and sold to Bear Xxxxxxx.
(d) The Mortgage Loan Seller shall have furnished to the Purchaser such
other certificates of its officers or others and such other documents and opinions of
counsel to evidence fulfillment of the conditions set forth in this Agreement and the
transactions contemplated hereby as the Purchaser and its counsel may reasonably
request.
(2) The obligations of the Mortgage Loan Seller under this Agreement shall be
subject to the satisfaction, on or prior to the Closing Date, of the following conditions:
(a) The obligations of the Purchaser required to be performed by it on
or prior to the Closing Date pursuant to the terms of this Agreement shall have been
duly performed and complied with in all material respects, and all of the
representations and warranties of the Purchaser under this Agreement shall be true
and correct in all material respects as of the date hereof and as of the Closing
Date, and no event shall have occurred which would constitute a breach by it of the
terms of this Agreement, and the Mortgage Loan Seller shall have received a
certificate to that effect signed by an authorized officer of the Purchaser.
(b) The Mortgage Loan Seller shall have received copies of all of the
following closing documents, in such forms as are agreed upon and reasonably
acceptable to the Mortgage Loan Seller, duly executed by all signatories other than
the Mortgage Loan Seller as required pursuant to the respective terms thereof:
(i) If required pursuant to Section 3 hereof, the Amendment
dated as of the Closing Date and any documents referred to therein;
(ii) The Pooling and Servicing Agreement, in form and substance
reasonably satisfactory to the Mortgage Loan Seller, and all documents required
thereby duly executed by all signatories;
(iii) A certificate of an officer of the Purchaser dated as of the
Closing Date, in a form reasonably acceptable to the Mortgage Loan Seller, and
attached thereto copies of the Purchaser's articles of incorporation and
by-laws, and evidence as to the good standing of the Purchaser dated as of a
recent date;
(iv) One or more opinions of counsel from the Purchaser's counsel
in form and substance reasonably satisfactory to the Mortgage Loan Seller; and
(v) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary to
secure the intended rating from each Rating Agency for the Certificates.
SECTION 11. Fees and Expenses. Subject to Section 16 hereof, the Mortgage Loan
Seller shall pay on the Closing Date or such later date as may be agreed to by the
Purchaser (i) the fees and expenses of the Mortgage Loan Seller's attorneys and the
reasonable fees and expenses of the Purchaser's attorneys, (ii) the fees and expenses of
Deloitte & Touche LLP, (iii) the fee for the use of Purchaser's Registration Statement
based on the aggregate original principal amount of the Certificates and the filing fee of
the Commission as in effect on the date on which the Registration Statement was declared
effective, (iv) the fees and expenses including counsel's fees and expenses in connection
with any "blue sky" and legal investment matters, (v) the fees and expenses of the Trustee
which shall include without limitation the fees and expenses of the Trustee (and the fees
and disbursements of its counsel) with respect to (A) legal and document review of this
Agreement, the Pooling and Servicing Agreement, the Certificates and related agreements,
(B) attendance at the Closing and (C) review of the Mortgage Loans to be performed by the
Trustee, (vi) the expenses for printing or otherwise reproducing the Certificates, the
Prospectus and the Prospectus Supplement, (vii) the fees and expenses of each Rating Agency
(both initial and ongoing), (viii) the fees and expenses relating to the preparation and
recordation of mortgage assignments (including intervening assignments, if any and if
available, to evidence a complete chain of title from the originator thereof to the
Trustee) from the Mortgage Loan Seller to the Trustee or the expenses relating to the
Opinion of Counsel referred to in Section 6(i) hereof, as the case may be, and (ix)
Mortgage File due diligence expenses and other out-of-pocket expenses incurred by the
Purchaser in connection with the purchase of the Mortgage Loans and by Bear Xxxxxxx in
connection with the sale of the Certificates. The Mortgage Loan Seller additionally agrees
to pay directly to any third party on a timely basis the fees provided for above which are
charged by such third party and which are billed periodically.
SECTION 12. Accountants' Letters.
(i) Deloitte & Touche LLP will review the characteristics of a sample of the
Mortgage Loans described in the Final Mortgage Loan Schedule and will compare those
characteristics to the description of the Mortgage Loans contained in the Prospectus
Supplement under the captions "Summary of Terms - The Mortgage Pool" and "Description of
the Mortgage Loans" and in Schedule A thereto. The Mortgage Loan Seller will cooperate with
the Purchaser in making available all information and taking all steps reasonably necessary
to permit such accountants to complete the review and to deliver the letters required of
them under the Underwriting Agreement. Deloitte & Touche LLP will also confirm certain
calculations as set forth under the caption "Yield and Prepayment Considerations" in the
Prospectus Supplement.
(ii) To the extent statistical information with respect to the Master
Servicer's servicing portfolio is included in the Prospectus Supplement under the caption
"The Master Servicer," a letter from the certified public accountant for the Master
Servicer will be delivered to the Purchaser dated the date of the Prospectus Supplement, in
the form previously agreed to by the Mortgage Loan Seller and the Purchaser, with respect
to such statistical information.
SECTION 13. Indemnification.
(i) The Mortgage Loan Seller shall indemnify and hold harmless the Purchaser
and its directors, officers and controlling persons (as defined in Section 15 of the
Securities Act) from and against any loss, claim, damage or liability or action in respect
thereof, to which they or any of them may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is
based upon (i) any untrue statement of a material fact contained in the Mortgage Loan
Seller's Information as identified in Exhibit 3, the omission to state in the Prospectus
Supplement or Prospectus (or any amendment thereof or supplement thereto approved by the
Mortgage Loan Seller and in which additional Mortgage Loan Seller's Information is
identified), in reliance upon and in conformity with Mortgage Loan Seller's Information a
material fact required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made, not misleading, (ii) any representation
or warranty assigned or made by the Mortgage Loan Seller in Section 7 or Section 8 hereof
being, or alleged to be, untrue or incorrect, or (iii) any failure by the Mortgage Loan
Seller to perform its obligations under this Agreement; and the Mortgage Loan Seller shall
reimburse the Purchaser and each other indemnified party for any legal and other expenses
reasonably incurred by them in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action.
The foregoing indemnity agreement is in addition to any liability which the Mortgage
Loan Seller otherwise may have to the Purchaser or any other such indemnified party.
(ii) The Purchaser shall indemnify and hold harmless the Mortgage Loan Seller
and its respective directors, officers and controlling persons (as defined in Section 15 of
the Securities Act) from and against any loss, claim, damage or liability or action in
respect thereof, to which they or any of them may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is
based upon (a) any untrue statement of a material fact contained in the Purchaser's
Information as identified in Exhibit 4, the omission to state in the Prospectus Supplement
or Prospectus (or any amendment thereof or supplement thereto approved by the Purchaser and
in which additional Purchaser's Information is identified), in reliance upon and in
conformity with the Purchaser's Information, a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances in which they
were made, not misleading, (b) any representation or warranty made by the Purchaser in
Section 9 hereof being, or alleged to be, untrue or incorrect, or (c) any failure by the
Purchaser to perform its obligations under this Agreement; and the Purchaser shall
reimburse the Mortgage Loan Seller, and each other indemnified party for any legal and
other expenses reasonably incurred by them in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action. The foregoing
indemnity agreement is in addition to any liability which the Purchaser otherwise may have
to the Mortgage Loan Seller, or any other such indemnified party,
(iii) Promptly after receipt by an indemnified party under subsection (i) or
(ii) above of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in writing of
the commencement thereof (but the failure so to notify an indemnifying party shall not
relieve it from any liability which it may have under this Section 13 except to the extent
that it has been prejudiced in any material respect by such failure or from any liability
which it may have otherwise). In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent it may elect by written
notice delivered to the indemnified party promptly (but, in any event, within 30 days)
after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at the expense
of such indemnified party or parties unless (a) the employment of such counsel shall have
been authorized in writing by one of the indemnifying parties in connection with the
defense of such action, (b) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (c) such indemnified party or parties shall have reasonably
concluded that there is a conflict of interest between itself or themselves and the
indemnifying party in the conduct of the defense of any claim or that the interests of the
indemnified party or parties are not substantially co-extensive with those of the
indemnifying party (in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties (provided,
however, that the indemnifying party shall be liable only for the fees and expenses of one
counsel in addition to one local counsel in the jurisdiction involved. Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall not be liable for
any settlement or any claim or action effected without its written consent; provided,
however, that such consent was not unreasonably withheld.
(iv) If the indemnification provided for in paragraphs (i) and (ii) of this
Section 13 shall for any reason be unavailable to an indemnified party in respect of any
loss, claim, damage or liability, or any action in respect thereof, referred to in Section
13, then the indemnifying party shall in lieu of indemnifying the indemnified party
contribute to the amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, in such proportion as shall
be appropriate to reflect the relative benefits received by the Mortgage Loan Seller on the
one hand and the Purchaser on the other from the purchase and sale of the Mortgage Loans,
the offering of the Certificates and the other transactions contemplated hereunder. No
person found liable for a fraudulent misrepresentation shall be entitled to contribution
from any person who is not also found liable for such fraudulent misrepresentation.
(v) The parties hereto agree that reliance by an indemnified party on any
publicly available information or any information or directions furnished by an
indemnifying party shall not constitute negligence, bad faith or willful misconduct by such
indemnified party.
SECTION 14. Notices. All demands, notices and communications hereunder shall be
in writing but may be delivered by facsimile transmission subsequently confirmed in
writing. Notices to the Mortgage Loan Seller shall be directed to EMC Mortgage Corporation,
Mac Xxxxxx Xxxxx XX, 000 Xxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (Telecopy:
(972-444-2880)), and notices to the Purchaser shall be directed to Structured Asset
Mortgage Investments II Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Telecopy:
(212-272-7206)), Attention: Xxxxx Xxxxxxxxxxx; or to any other address as may hereafter be
furnished by one party to the other party by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date received at the
premises of the addressee (as evidenced, in the case of registered or certified mail, by
the date noted on the return receipt) provided that it is received on a Business Day during
normal business hours and, if received after normal business hours, then it shall be deemed
to be received on the next Business Day.
SECTION 15. Transfer of Mortgage Loans. The Purchaser retains the right to
assign the Mortgage Loans and any or all of its interest under this Agreement to the
Trustee without the consent of the Mortgage Loan Seller, and, upon such assignment, the
Trustee shall succeed to the applicable rights and obligations of the Purchaser hereunder;
provided, however, the Purchaser shall remain entitled to the benefits set forth in
Sections 11, 13 and 17 hereto and as provided in Section 2(i). Notwithstanding the
foregoing, the sole and exclusive right and remedy of the Trustee with respect to a breach
of a representation or warranty of the Mortgage Loan Seller shall be the cure, purchase or
substitution obligations of the Mortgage Loan Seller contained in Sections 5 and 7 hereof.
SECTION 16. Termination. This Agreement may be terminated (a) by the mutual
consent of the parties hereto prior to the Closing Date, (b) by the Purchaser, if the
conditions to the Purchaser's obligation to close set forth under Section 10(1) hereof are
not fulfilled as and when required to be fulfilled or (c) by the Mortgage Loan Seller, if
the conditions to the Mortgage Loan Seller's obligation to close set forth under Section
10(2) hereof are not fulfilled as and when required to be fulfilled. In the event of
termination pursuant to clause (b), the Mortgage Loan Seller shall pay, and in the event of
termination pursuant to clause (c), the Purchaser shall pay, all reasonable out-of-pocket
expenses incurred by the other in connection with the transactions contemplated by this
Agreement. In the event of a termination pursuant to clause (a), each party shall be
responsible for its own expenses.
SECTION 17. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or contained in
certificates of officers of the Mortgage Loan Seller submitted pursuant hereto, shall
remain operative and in full force and effect and shall survive delivery of the Mortgage
Loans to the Purchaser (and by the Purchaser to the Trustee). Subsequent to the delivery of
the Mortgage Loans to the Purchaser, the Mortgage Loan Seller's representations and
warranties contained herein with respect to the Mortgage Loans shall be deemed to relate to
the Mortgage Loans actually delivered to the Purchaser and included in the Final Mortgage
Loan Schedule and any Substitute Mortgage Loan and not to those Mortgage Loans deleted from
the Preliminary Mortgage Loan Schedule pursuant to Section 3 hereof prior to the Closing or
any Deleted Mortgage Loan.
SECTION 18. Severability. If any provision of this Agreement shall be
prohibited or invalid under applicable law, this Agreement shall be ineffective only to
such extent, without invalidating the remainder of this Agreement.
SECTION 19. Counterparts. This Agreement may be executed in counterparts, each
of which will be an original, but which together shall constitute one and the same
agreement.
SECTION 20. Amendment. This Agreement cannot be amended or modified in any
manner without the prior written consent of each party.
SECTION 21. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND
PERFORMED IN THE STATE OF NEW YORK AND SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF
SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
SECTION 22. Further Assurances. Each of the parties agrees to execute and
deliver such instruments and take such actions as another party may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms of this
Agreement including any amendments hereto which may be required by either Rating Agency.
SECTION 23. Successors and Assigns. This Agreement shall bind and inure to the
benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser and their
permitted successors and assigns and, to the extent specified in Section 13 hereof, Bear
Xxxxxxx, and their directors, officers and controlling persons (within the meaning of
federal securities laws). The Mortgage Loan Seller acknowledges and agrees that the
Purchaser may assign its rights under this Agreement (including, without limitation, with
respect to the Mortgage Loan Seller's representations and warranties respecting the
Mortgage Loans) to the Trustee. Any person into which the Mortgage Loan Seller may be
merged or consolidated (or any person resulting from any merger or consolidation involving
the Mortgage Loan Seller), any person resulting from a change in form of the Mortgage Loan
Seller or any person succeeding to the business of the Mortgage Loan Seller, shall be
considered the "successor" of the Mortgage Loan Seller hereunder and shall be considered a
party hereto without the execution or filing of any paper or any further act or consent on
the part of any party hereto. Except as provided in the two preceding sentences and in
Section 15 hereto, this Agreement cannot be assigned, pledged or hypothecated by either
party hereto without the written consent of the other parties to this Agreement and any
such assignment or purported assignment shall be deemed null and void.
SECTION 24. The Mortgage Loan Seller and the Purchaser. The Mortgage Loan
Seller and the Purchaser will keep in full effect all rights as are necessary to perform
their respective obligations under this Agreement.
SECTION 25. Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties with respect to the subject matter hereof, and supersedes
all prior and contemporaneous agreements, understandings, inducements and conditions,
express or implied, oral or written, of any nature whatsoever with respect to the subject
matter hereof.
SECTION 26. No Partnership. Nothing herein contained shall be deemed or
construed to create a partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by
their respective duly authorized officers as of the date first above written.
EMC MORTGAGE CORPORATION
By:
Name:
Title:
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
By:
Name:
Title:
E-1
EXHIBIT 1
CONTENTS OF MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser or its designee,
and which shall be delivered to the Purchaser or its designee pursuant to the terms of the
Agreement:
(i) The original Mortgage Note, endorsed without recourse to the order of the
Trustee and showing an unbroken chain of endorsements from the original payee thereof
to the Person endorsing it to the Trustee, or lost note affidavit;
(ii) The original Mortgage and, if the related Mortgage Loan is a MOM Loan,
noting the presence of the MIN and language indicating that such Mortgage Loan is a
MOM Loan, which shall have been recorded (or if the original is not available, a
copy), with evidence of such recording indicated thereon (or if the original Security
Instrument, assignments to the Trustee or intervening assignments thereof which have
been delivered, are being delivered or will, upon receipt of recording information
relating to the Security Instrument required to be included thereon, be delivered to
recording offices for recording and have not been returned to the Mortgage Loan
Seller in time to permit their recording as specified in Section 2.01(b) of the
Pooling and Servicing Agreement, shall be in recordable form);
(iii) Unless the Mortgage Loan is a MOM Loan, a certified copy of the
assignment (which may be in the form of a blanket assignment if permitted in the
jurisdiction in which the Mortgaged Property is located) to "JPMorgan Chase Bank,
National Association, as Trustee", with evidence of recording with respect to each
Mortgage Loan in the name of the Trustee thereon (or if the original Security
Instrument, assignments to the Trustee or intervening assignments thereof which have
been delivered, are being delivered or will, upon receipt of recording information
relating to the Security Instrument required to be included thereon, be delivered to
recording offices for recording and have not been returned to the Mortgage Loan
Seller in time to permit their delivery as specified in Section 2.01(b) of the
Pooling and Servicing Agreement, the Mortgage Loan Seller may deliver a true copy
thereof with a certification by the Mortgage Loan Seller, on the face of such copy,
substantially as follows: "Certified to be a true and correct copy of the original,
which has been transmitted for recording");
(iv) All intervening assignments of the Security Instrument, if applicable and
only to the extent available to the Mortgage Loan Seller with evidence of recording
thereon;
(v) The original or a copy of the policy or certificate of primary mortgage
guaranty insurance, to the extent available, if any;
(vi) The original policy of title insurance or mortgagee's certificate of
title insurance or commitment or binder for title insurance; and
(vii) The originals of all modification agreements, if applicable and available.
E-2-2
EXHIBIT 2
MORTGAGE LOAN SCHEDULE INFORMATION
The Preliminary and Final Mortgage Loan Schedules shall set forth the following
information with respect to each Mortgage Loan:
(a) the loan number;
(b) the Mortgagor's name;
(c) the city, state and zip code of the Mortgaged Property;
(d) the property type;
(e) the Mortgage Interest Rate;
(f) the Servicing Fee Rate;
(g) the Net Rate;
(h) the original term;
(i) the maturity date;
(j) the stated remaining term to maturity;
(k) the original Principal Balance;
(1) the first payment date;
(m) the principal and interest payment in effect as of the Cut-off Date;
(n) the unpaid Principal Balance as of the Cut-off Date;
(o) the Loan-to-Value Ratio at origination;
(p) the paid-through date;
(q) the insurer of any Primary Mortgage Insurance Policy;
(r) the Gross Margin, if applicable;
(s) the Maximum Lifetime Mortgage Rate, if applicable;
(t) the Minimum Lifetime Mortgage Rate, if applicable;
(u) the Periodic Rate Cap, if applicable;
(v) the number of days delinquent, if any;
(w) a code indicating whether the Mortgage Loan is negatively amortizing; and
(x) which Mortgage Loans adjust after an initial fixed~rate period of one, two, three,
five, seven or ten years.
Such schedule also shall set forth for all of the Mortgage Loans, the total number of
Mortgage Loans, the total of each of the amounts described under (k) and (n) above, the
weighted average by principal balance as of the Cut-off Date of each of the rates described
under (e), (f) and (g) above, and the weighted average remaining term to maturity by unpaid
principal balance as of the Cut-off Date.
E-3
EXHIBIT 3
MORTGAGE LOAN SELLER'S INFORMATION
All information in the Prospectus Supplement described under the following Sections:
"SUMMARY OF TERMS -- The Mortgage Pool," "DESCRIPTION OF THE MORTGAGE LOANS" and "SCHEDULE
A -- CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS."
E-4
EXHIBIT 4
PURCHASER'S INFORMATION
All information in the Prospectus Supplement and the Prospectus, except the Mortgage
Loan Seller's Information.
E-10
EXHIBIT 5
SCHEDULE OF LOST NOTES
Available Upon Request
EXHIBIT 6
Standard & Poor's LEVELS® Glossary, Version 5.6b Revised, Appendix E
REVISED July 11, 0000
XXXXXXXX X - Standard & Poor's Anti-Predatory Lending Categorization
Standard & Poor's has categorized loans governed by anti-predatory lending laws in the
Jurisdictions listed below into three categories based upon a combination of factors that
include (a) the risk exposure associated with the assignee liability and (b) the tests and
thresholds set forth in those laws. Note that certain loans classified by the relevant
statute as Covered are included in Standard & Poor's High Cost Loan Category because they
included thresholds and tests that are typical of what is generally considered High Cost by
the industry.
Standard & Poor's High Cost Loan Categorization
--------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection High Cost Home Loan
Act, Ark. Code Xxx. §§ 00-00-000
et seq.
Effective July 16, 2003
--------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Code §§ 757.01 et seq.
Effective June 2, 2003
--------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. Xxx. §§ 5-3.5-101 et seq.
Effective for covered loans
offered or entered into on or
after January 1, 2003. Other
provisions of the Act took effect
on June 7, 2002
--------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan High Cost Home Loan
Lending Practices Act, Conn. Gen.
Stat. §§ 36a-746 et seq.
Effective October 1, 2001
--------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Covered Loan
Code §§ 26-1151.01 et seq.
Effective for loans closed on or
after January 28, 2003
--------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. High Cost Home Loan
§§ 494.0078 et seq.
Effective October 2, 2002
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. High Cost Home Loan
- Mar. 6, 2003) Code Xxx. §§ 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
Georgia as amended Georgia Fair Lending Act, Ga. High Cost Home Loan
(Mar. 7, 2003 - Code Xxx. §§ 7-6A-1 et seq.
current)
Effective for loans closed on or
after March 7, 2003
--------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity High Cost Loan
Protection Act of 1994, 15 U.S.C.
§ 1639, 12 C.F.R. §§ 226.32 and
226.34
Effective October 1, 1995,
amendments October 1, 2002
--------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. High Risk Home Loan
Comp. Stat. tit. 815, §§ 137/5 et
seq.
Effective January 1, 2004 (prior
to this date, regulations under
Residential Mortgage License Act
effective from July 14, 2001)
--------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. High Loan to Value
Xxx. §§ 16a-1-101 et seq. Consumer Loan (id. §
16a-3-207) and;
Sections 16a-1-301 and 16a-3-207
became effective April 14, 1999;
Section 16a-3-308a became
effective July 1, 1999
--------------------------------------------------------------------------------
High APR Consumer
Loan (id. §
16a-3-308a)
--------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat. §§
360.100 et seq.
Effective June 24, 2003
--------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. High Rate High Fee
tit. 9-A, §§ 8-101 et seq. Mortgage
Effective September 29, 1995 and
as amended from time to time
--------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. High Cost Home Loan
§§ 32.00 et seq. and 209 C.M.R.
§§ 40.01 et seq.
Effective March 22, 2001 and
amended from time to time
--------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Home Loan
Stat. §§ 598D.010 et seq.
Effective October 1, 2003
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership High Cost Home Loan
Security Act of 2002, N.J. Rev.
Stat. §§ 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
--------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. High Cost Home Loan
Rev. Stat. §§ 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
--------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made
on or after April 1, 2003
--------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Loan
High Cost Home Loans, N.C. Gen.
Stat. §§ 24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
--------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various Covered Loan
sections of the Ohio Code), Ohio
Rev. Code Xxx. §§ 1349.25 et seq.
Effective May 24, 2002
--------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in Subsection 10
various sections of Title 14A) Mortgage
Effective July 1, 2000; amended
effective January 1, 2004
--------------------------------------------------------------------------------
South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home Loans Act, S.C.
Code Xxx. §§ 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
--------------------------------------------------------------------------------
West Virginia West Virginia Residential West Virginia
Mortgage Lender, Broker and Mortgage Loan Act
Servicer Act, W. Va. Code Xxx. §§ Loan
31-17-1 et seq.
Effective June 5, 2002
--------------------------------------------------------------------------------
Standard & Poor's Covered Loan Categorization
--------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. Covered Loan
- Mar. 6, 2003) Code Xxx. §§ 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Covered Home Loan
Security Act of 2002, N.J. Rev.
Stat. §§ 46:10B-22 et seq.
Effective November 27, 2003 -
July 5, 2004
--------------------------------------------------------------------------------
Standard & Poor's Home Loan Categorization
--------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. Home Loan
- Mar. 6, 2003) Code Xxx. §§ 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Home Loan
Security Act of 2002, N.J. Rev.
Stat. §§ 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
--------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Home Loan
Rev. Stat. §§ 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
--------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on Consumer Home Loan
High Cost Home Loans, N.C. Gen.
Stat. §§ 24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
--------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Loan
Consumer Home Loans Act, S.C.
Code Xxx. §§ 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
--------------------------------------------------------------------------------
A-2
SCHEDULE A
REQUIRED RATINGS FOR EACH CLASS OF CERTIFICATES
Certificates
Certificates S&P Moody's
------------ ---- -------
Class I-1A-1 AAA Aaa
Class I-1A-2 AAA Aaa
Class II-1A-1 AAA Aaa
Class II-1A-2 AAA Aa1
Class II-1X AAA Aaa
Class II-2A-1 AAA Aaa
Class II-3A-1 AAA Aaa
Class II-3A-2 AAA Aa1
Class II-4A-1 AAA Aaa
Class II-4A-2 AAA Aa1
Class II-5A-1 AAA Aaa
Class II-5A-2 AAA Aa1
Class II-6A-1 AAA Aaa
Class II-6A-2 AAA Aa1
Class I-M-1 AA Aa2
Class I-M-2 A A2
Class I-B-1 BBB Baa2
Class I-B-2 BBB- Baa3
Class II-B-1 AA Aa2
Class II-B-2 A A2
Class II-B-3 BBB Baa2
--------------------------------------------------------------------------------------------
The Class I-B-3, Class II-B-4, Class II-B-5, Class II-B-6 Class R, Class R-X, Class B-IO,
and Class XP Certificates have not been rated.
None of the above ratings has been lowered, qualified or withdrawn since the dates of
issuance of such ratings by the Rating Agencies.
SCHEDULE B
MORTGAGE LOAN SCHEDULE
(Provided upon request)
EXHIBIT K
FORM OF SUBSEQUENT MORTGAGE LOAN PURCHASE AGREEMENT
between
EMC MORTGAGE CORPORATION
as Seller
and
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
as Purchaser
Dated as of
September 30, 2005
TABLE OF CONTENTS
Page
SECTION 1. Definitions....................................................3
SECTION 2. Purchase and Sale of the Subsequent Mortgage Loans
and Related Rights.............................................5
SECTION 3. Subsequent Mortgage Loan Schedules.............................6
SECTION 4. Subsequent Mortgage Loan Transfer..............................6
SECTION 5. Examination of Mortgage Files..................................7
SECTION 6. Recordation of Assignments of Mortgage.........................9
SECTION 7. Representations and Warranties of Seller Concerning
the Subsequent Mortgage Loans.................................10
SECTION 8. Representations and Warranties Concerning the Seller..........17
SECTION 9. Representations and Warranties Concerning the Purchaser.......18
SECTION 10. Conditions to Closing.........................................19
SECTION 11. Fees and Expenses.............................................20
SECTION 12. Accountants' Letters..........................................21
SECTION 13. Indemnification...............................................21
SECTION 14. Notices.......................................................22
SECTION 15. Transfer of Subsequent Mortgage Loans.........................23
SECTION 16. Termination...................................................23
SECTION 17. Representations, Warranties and Agreements
to Survive Delivery...........................................23
SECTION 18. Severability..................................................24
SECTION 19. Counterparts..................................................24
SECTION 20. Amendment.....................................................24
SECTION 21. Governing Law.................................................24
SECTION 22. Further Assurances............................................24
SECTION 23. Successors and Assigns........................................24
SECTION 24. The Seller and the Purchaser..................................24
SECTION 25. Entire Agreement..............................................24
SECTION 26. No Partnership................................................25
EXHIBITS AND SCHEDULE TO
SUBSEQUENT MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 Contents of Mortgage File
Exhibit 2 Subsequent Mortgage Loan Schedule Information
Exhibit 3 Schedule of Lost Notes
Exhibit 4 Standard & Poor's LEVELS® Glossary, Version 5.6 Revised, Appendix E
Schedule A Required Rating For Each Class of Certificates
SUBSEQUENT MORTGAGE LOAN PURCHASE AGREEMENT
SUBSEQUENT MORTGAGE LOAN PURCHASE AGREEMENT, dated as of September 30, 2005 as
amended and supplemented by any and all amendments hereto (collectively, the "Agreement"),
by and between EMC MORTGAGE CORPORATION, a Delaware corporation (the "Seller"), and
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., a Delaware corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement, the Seller
agrees to sell, and the Purchaser agrees to purchase, certain conventional, first lien
mortgage loans secured primarily by one- to four-family residential properties
(collectively, the "Subsequent Mortgage Loans") as described herein. The Purchaser
intends to deposit the Subsequent Mortgage Loans into a trust fund (the "Trust Fund") named
Bear Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates, Series 2005-9 (the
"Certificates"), created under a pooling and servicing agreement, dated as of September 1,
2005 (the "Pooling and Servicing Agreement"), among the Purchaser, as seller, JPMorgan
Chase Bank, National Association, as trustee (the "Trustee"), EMC Mortgage Corporation and
Xxxxx Fargo Bank, National Association, as master servicer and securities administrator.
The Purchaser has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Number 333-120916) relating to its
Mortgage Pass-Through Certificates and the offering of certain series thereof (including
certain classes of the Certificates) from time to time in accordance with Rule 415 under
the Securities Act of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder (the "Securities Act"). Such registration statement, when it
became effective under the Securities Act, and the prospectus relating to the public
offering of certain classes of the Certificates by the Purchaser (the "Public Offering"),
as from time to time each is amended or supplemented pursuant to the Securities Act or
otherwise, are referred to herein as the "Registration Statement" and the "Prospectus,"
respectively. The "Prospectus Supplement" shall mean that supplement, dated September 28,
2005, to the Prospectus, dated December 20, 2004, relating to certain classes of the
Certificates. With respect to the public offering of certain classes of the Certificates,
the Purchaser and Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") have entered into a terms
agreement, dated as of September 28, 2005, to an underwriting agreement, dated July 29,
2003, between the Purchaser and Bear Xxxxxxx (collectively, the "Underwriting Agreement").
Now, therefore, in consideration of the premises and the mutual agreements set
forth herein, the parties hereto agree as follows:
SECTION 1. Definitions. Certain terms are defined herein. Capitalized terms used
herein but not defined herein shall have the meanings specified in the Pooling and
Servicing Agreement. The following other terms are defined as follows:
Acquisition Price: Cash in an amount equal to $____________ (plus $________ in
accrued interest)(1).
Bear Xxxxxxx: Bear, Xxxxxxx & Co. Inc.
Deleted Subsequent Mortgage Loan: A Subsequent Mortgage Loan replaced or to be
replaced by a Substitute Mortgage Loan.
Due Date: With respect to each Subsequent Mortgage Loan, the date in each
month on which its Scheduled Payment is due, if such due date is the first day of a month,
and otherwise is deemed to be the first day of the following month or such other date
specified in the related Servicing Agreement.
Master Servicer: Xxxxx Fargo Bank, National Association.
Moody's: Xxxxx'x Investors Service, Inc., or its successors in interest.
Mortgage: The mortgage or deed of trust creating a first lien on an interest
in real property securing a Mortgage Note.
Mortgage File: The items referred to in Exhibit 1 pertaining to a particular
Subsequent Mortgage Loan and any additional documents required to be added to such
documents pursuant to this Agreement or the Pooling and Servicing Agreement.
Mortgage Interest Rate: The annual rate of interest borne by a Mortgage Note as
stated therein.
Mortgagor: The obligor(s) on a Mortgage Note.
Opinion of Counsel: A written opinion of counsel, who may be counsel for the
Seller or the Purchaser, reasonably acceptable to the Trustee.
Person: Any legal person, including any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Purchase Price: With respect to any Subsequent Mortgage Loan (or any property
acquired with respect thereto) required to be repurchased by the Seller pursuant to this
Agreement or Article II of the Pooling and Servicing Agreement, an amount equal to the sum
of (i)(a) 100% of the Outstanding Principal Balance of such Subsequent Mortgage Loan as of
the date of repurchase (or if the related Mortgaged Property was acquired with respect
thereto, 100% of the Outstanding Principal Balance at the date of the acquisition), plus
(b) accrued but unpaid interest on the Outstanding Principal Balance at the related
Mortgage Interest Rate, through and including the last day of the month of repurchase, and
reduced by (c) any portion of the Master Servicing Compensation, Monthly Advances and
advances payable to the purchaser of the Subsequent Mortgage Loan and (ii) any costs and
damages (if any) incurred by the Trust in connection with any violation of such Subsequent
Mortgage Loan of any anti-predatory or abusive lending laws.
Rating Agencies: Standard & Poor's and Moody's, each a "Rating Agency."
Securities Act: The Securities Act of 1933, as amended.
Security Instrument: A written instrument creating a valid first lien on a
Mortgaged Property securing a Mortgage Note, which may be any applicable form of mortgage,
deed of trust, deed to secure debt or security deed, including any riders or addenda
thereto.
Standard & Poor's: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successors in interest.
Subsequent Cut-off Date Balance: $[____].
Subsequent Cut-off Date: September 1, 2005.
Subsequent Transfer Date: September 30, 2005.
Substitute Mortgage Loan: A mortgage loan substituted for a Deleted Subsequent
Mortgage Loan which must meet, on the date of such substitution, the requirements stated
herein and in the Pooling and Servicing Agreement with respect to such substitution; upon
such substitution, such mortgage loan shall be a "Subsequent Mortgage Loan" hereunder.
Value: The value of the Mortgaged Property at the time of origination of the
related Subsequent Mortgage Loan, such value being the lesser of (i) the value of such
property set forth in an appraisal accepted by the applicable originator of the Subsequent
Mortgage Loan or (ii) the sales price of such property at the time of origination.
SECTION 2. Purchase and Sale of the Subsequent Mortgage Loans and Related
Rights.(a) Upon satisfaction of the conditions set forth in Section 10 hereof, the Seller
agrees to sell, and the Purchaser agrees to purchase, Subsequent Mortgage Loans having an
aggregate Subsequent Cut-off Date Balance of $[____].
(b) The closing for the purchase and sale of the Subsequent Mortgage Loans
will take place on the Subsequent Transfer Date at the office of the Purchaser's counsel in
New York, New York or such other place as the parties shall agree.
(c) Upon the satisfaction of the conditions set forth in Section 10 hereof,
on the Subsequent Transfer Date, the Purchaser shall pay to the Seller the Acquisition
Price for the Subsequent Mortgage Loans in immediately available funds by wire transfer to
such account or accounts as shall be designated by the Seller.
(d) In addition to the foregoing, on the Subsequent Transfer Date the Seller
assigns to the Purchaser all of its right, title and interest in the Servicing Agreements
(other than its right to enforce the representations and warranties set forth therein).
SECTION 3. Subsequent Mortgage Loan Schedules. The Seller agrees to provide to the
Purchaser as of the date hereof a preliminary listing of the Subsequent Mortgage Loans (the
"Preliminary Subsequent Mortgage Loan Schedule") setting forth the information listed on
Exhibit 2 to this Agreement with respect to each of the Subsequent Mortgage Loans being
sold by the Seller. If there are changes to the Preliminary Subsequent Mortgage Loan
Schedule, the Seller shall provide to the Purchaser as of the Subsequent Transfer Date a
final schedule (the "Final Subsequent Mortgage Loan Schedule", and together with the
Preliminary Subsequent Mortgage Loan Schedule, the "Mortgage Loan Schedule")) setting forth
the information listed on Exhibit 2 to this Agreement with respect to each of the
Subsequent Mortgage Loans being sold by the Seller to the Purchaser. The Final Subsequent
Mortgage Loan Schedule shall be delivered to the Purchaser on the Subsequent Transfer Date,
shall be attached to an amendment to this Agreement to be executed on the Subsequent
Transfer Date by the parties hereto and shall be in form and substance mutually agreed to
by the Seller and the Purchaser (the "Amendment"). If there are no changes to the
Preliminary Subsequent Mortgage Loan Schedule, the Preliminary Subsequent Mortgage Loan
Schedule shall be the Final Subsequent Mortgage Loan Schedule for all purposes hereof.
SECTION 4. Subsequent Mortgage Loan Transfer.
(a) The Purchaser will be entitled to all scheduled payments of principal and
interest on the Subsequent Mortgage Loans due after the Subsequent Cut-off Date (regardless
of when actually collected) and all payments thereon other than scheduled principal and
interest on the Subsequent Mortgage Loans due on or before the Subsequent Cut-off Date and
received after the Subsequent Cut-off Date. The Seller will be entitled to all scheduled
payments of principal and interest on the Subsequent Mortgage Loans due on or before the
Subsequent Cut-off Date (including payments collected after the Subsequent Cut-off Date)
and all payments in respect of such payments due thereon other than scheduled principal and
interest on the Subsequent Mortgage Loans due after the Subsequent Cut-off Date and
received on or before the Subsequent Cut-off Date. Such principal amounts and any interest
thereon belonging to the Seller as described above will not be included in the aggregate
outstanding principal balance of the Subsequent Mortgage Loans as of the Subsequent Cut-off
Date as set forth on the Final Subsequent Mortgage Loan Schedule.
(b) Pursuant to various conveyancing documents to be executed on the
Subsequent Transfer Date and pursuant to the Pooling and Servicing Agreement, the Purchaser
will assign on the Subsequent Transfer Date all of its right, title and interest in and to
the Subsequent Mortgage Loans to the Trustee for the benefit of the Certificateholders. In
connection with the transfer and assignment of the Subsequent Mortgage Loans, the Seller
has delivered or will deliver or cause to be delivered to the Trustee no later than three
Business Days prior to the Subsequent Transfer Date or such later date as is agreed to by
the Purchaser and the Seller (each of the Subsequent Transfer Date and such later date is
referred to as a "Mortgage File Delivery Date"), the items of each Mortgage File, provided,
however, that in lieu of the foregoing, the Seller may deliver the following documents,
under the circumstances set forth below: (x) in lieu of the original Security Instrument,
assignments to the Trustee or intervening assignments thereof which have been delivered,
are being delivered or will, upon receipt of recording information relating to the Security
Instrument required to be included thereon, be delivered, to recording offices for
recording and have not been returned to the Seller in time to permit their delivery as
specified above, the Seller may deliver a true copy thereof with a certification by the
Seller, on the face of such copy, substantially as follows: "Certified to be a true and
correct copy of the original, which has been transmitted for recording;" (y) in lieu of the
Security Instrument, assignments to the Trustee or intervening assignments thereof, if the
applicable jurisdiction retains the originals of such documents or if the originals are
lost (in each case, as evidenced by a certification from the Seller to such effect), the
Seller may deliver photocopies of such documents containing an original certification by
the judicial or other governmental authority of the jurisdiction where such documents were
recorded; and (z) in lieu of the Mortgage Notes relating to the Subsequent Mortgage Loans,
each identified in the list delivered by the Purchaser to the Trustee on the Subsequent
Transfer Date and attached hereto as Exhibit 3, the Seller may deliver lost note affidavits
and indemnities of the Seller; and provided further, however, that in the case of
Subsequent Mortgage Loans which have been prepaid in full after the Subsequent Cut-off Date
and prior to the Subsequent Transfer Date, the Seller, in lieu of delivering the above
documents, may deliver to the Trustee a certification by the Seller or the Master Servicer
to such effect. The Seller shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) or such certified
copies to the Trustee promptly after they are received. The Seller shall cause the
Security Instrument and intervening assignments, if any, and the assignment of the Mortgage
to be recorded not later than 180 days after the Subsequent Transfer Date, unless such
assignment is not required to be recorded under the terms set forth in Section 6(a) hereof.
(c) The Seller and the Purchaser acknowledge hereunder that all of the
Subsequent Mortgage Loans and the related servicing will ultimately be assigned to JPMorgan
Chase Bank, National Association, as Trustee for the Certificateholders, on the date hereof.
SECTION 5. Examination of Mortgage Files.
(a) On or before the Mortgage File Delivery Date, the Seller will have made
the Mortgage Files available to the Purchaser or its agent for examination, which may be at
the offices of the Trustee or the Seller and/or the Seller's custodian. The fact that the
Purchaser or its agent has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not affect the Purchaser's rights to demand cure,
repurchase, substitution or other relief as provided in this Agreement. In furtherance of
the foregoing, the Seller shall make the Mortgage Files available to the Purchaser or its
agent from time to time so as to permit the Purchaser to confirm the Seller's compliance
with the delivery and recordation requirements of this Agreement and the Pooling and
Servicing Agreement. In addition, upon request of the Purchaser, the Seller agrees to
provide to the Purchaser, Bear Xxxxxxx and to any investors or prospective investors in the
Certificates information regarding the Subsequent Mortgage Loans and their servicing, to
make the Mortgage Files available to the Purchaser, Bear Xxxxxxx and to such investors or
prospective investors (which may be at the offices of the Seller and/or the Seller's
custodian) and to make available personnel knowledgeable about the Subsequent Mortgage
Loans for discussions with the Purchaser, Bear Xxxxxxx and such investors or prospective
investors, upon reasonable request during regular business hours, sufficient to permit the
Purchaser, Bear Xxxxxxx and such investors or potential investors to conduct such due
diligence as any such party reasonably believes is appropriate.
(b) Pursuant to the Pooling and Servicing Agreement, on or prior to the
Subsequent Transfer Date, the Custodian shall acknowledge with respect to each Subsequent
Mortgage Loan, by an Initial Certification substantially in the form of Exhibit One to the
Custodial Agreement, receipt of the related Mortgage File, but without review of such
Mortgage File, except to the extent necessary to confirm that such Mortgage File contains
the related Mortgage Note or lost note affidavit.
(c) Pursuant to the Pooling and Servicing Agreement, no later than 90 days
after the Subsequent Transfer Date, the Trustee, for the benefit of the Certificateholders,
will review or cause the Custodian to review items of the Mortgage Files as set forth on
Exhibit 1 and will execute and deliver, or cause to be executed and delivered, to the
Seller a certification in the form attached as Exhibit Two to the Custodial Agreement.
(d) Pursuant to the Pooling and Servicing Agreement, the Trustee will review
or cause the Custodian to review the Mortgage Files within 180 days of the Subsequent
Transfer Date and will execute and deliver, or cause to be executed and delivered, to the
Seller and the Master Servicer a final certification substantially in the form of Exhibit
Three to the Custodial Agreement. If the Trustee, or the Custodian, as its agent, is
unable to deliver a final certification with respect to the items listed in Exhibit 2 due
to any document that is missing, has not been executed, is unrelated, determined on the
basis of the Mortgagor name, original principal balance and loan number, to the Subsequent
Mortgage Loans identified in the Final Subsequent Mortgage Loan Schedule or appears to be
defective on its face (a "Material Defect"), the Trustee, or the Custodian, as its agent,
shall promptly notify the Seller of such Material Defect. The Seller shall correct or cure
any such Material Defect within 90 days from the date of notice from the Trustee or the
Custodian, as its agent, of the Material Defect and, if the Seller does not correct or cure
such Material Defect within such period and such defect materially and adversely affects
the interests of the Certificateholders in the related Subsequent Mortgage Loan, the Seller
will, in accordance with the terms of the Pooling and Servicing Agreement, within 90 days
of the date of notice, provide the Trustee with a Substitute Mortgage Loan (if within two
years of the Closing Date) or purchase the related Subsequent Mortgage Loan at the
applicable Purchase Price; provided that, if such defect would cause the Subsequent
Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of
the Code, any such cure, repurchase or substitution must occur within 90 days from the date
such breach was discovered; provided, however, that if such defect relates solely to the
inability of the Seller to deliver the original Security Instrument or intervening
assignments thereof, or a certified copy thereto, because the originals of such documents,
or a certified copy, have not been returned by the applicable jurisdiction, the Seller
shall not be required to purchase such Subsequent Mortgage Loan if the Seller delivers such
original documents or certified copy promptly upon receipt, but in no event later than 360
days after the Subsequent Transfer Date. The foregoing repurchase obligation shall not
apply in the event that the Seller cannot deliver such original or copy of any document
submitted for recording to the appropriate recording office in the applicable jurisdiction
because such document has not been returned by such office; provided, that the Seller shall
instead deliver a recording receipt of such recording office or, if such receipt is not
available, a certificate of the Seller or the related Servicing Officer confirming that
such documents have been accepted for recording, and delivery to the Trustee or the
Custodian, as its agent, shall be effected by the Seller within thirty days of its receipt
of the original recorded document.
(e) At the time of any substitution, the Seller shall deliver or cause to be
delivered the Substitute Mortgage Loan, the related Mortgage File and any other documents
and payments required to be delivered in connection with a substitution pursuant to the
Pooling and Servicing Agreement. At the time of any purchase or substitution, the Trustee
shall (i) assign to the Seller and release or cause the Custodian to release the documents
(including, but not limited to, the Mortgage, Mortgage Note and other contents of the
Mortgage File) in its possession or in the possession of the Custodian relating to the
Deleted Subsequent Mortgage Loan and (ii) execute and deliver such instruments of transfer
or assignment, in each case without recourse, as shall be necessary to vest in the Seller
title to such Deleted Subsequent Mortgage Loan.
SECTION 6. Recordation of Assignments of Mortgage.
(a) The Seller will, promptly after the Subsequent Transfer Date, cause each
Mortgage and each assignment of Mortgage from the Seller to the Trustee, and all unrecorded
intervening assignments, if any, delivered on or prior to the Subsequent Transfer Date, to
be recorded in all recording offices in the jurisdictions where the related Mortgaged
Properties are located; provided, however, the Seller need not cause to be recorded any
assignment which relates to a Subsequent Mortgage Loan if (a) such recordation is not
required by the Rating Agencies or an Opinion of Counsel has been provided to the Trustee
which states that the recordation of such assignment is not necessary to protect the
Trustee's interest in the related Subsequent Mortgage Loan or (b) MERS is identified on the
Mortgage or on a properly recorded assignment of the Mortgage as mortgagee of record solely
as nominee for Seller and its successors and assigns; provided, however, notwithstanding
the delivery of any such Opinion of Counsel, each assignment of Mortgage shall be submitted
for recording by the Seller in the manner described above, at no expense to the Trust Fund
or Trustee, upon the earliest to occur of (i) reasonable direction by the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than 25% of the
Trust, (ii) the occurrence of an Event of Default, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Seller and, (iv) the occurrence of a servicing
transfer as described in Section 8.02 of the Pooling and Servicing Agreement.
While each such Mortgage or assignment is being recorded, if necessary, the
Seller shall leave or cause to be left with the Trustee a certified copy of such Mortgage
or assignment. In the event that, within 180 days of the Subsequent Transfer Date, the
Trustee has not been provided an Opinion of Counsel as described above or received evidence
of recording with respect to each Subsequent Mortgage Loan delivered to the Purchaser
pursuant to the terms hereof or as set forth above, the failure to provide evidence of
recording or such Opinion of Counsel shall be considered a Material Defect, and the
provisions of Section 5(c) and (d) shall apply. All customary recording fees and
reasonable expenses relating to the recordation of the assignments of Mortgages to the
Trustee or the Opinion of Counsel, as the case may be, shall be borne by the Seller.
(b) It is the express intent of the parties hereto that the conveyance of the
Subsequent Mortgage Loans by the Seller to the Purchaser, as contemplated by this Agreement
be, and be treated as, a sale. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Subsequent Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the event that,
notwithstanding the intent of the parties, the Subsequent Mortgage Loans are held by a
court of competent jurisdiction to continue to be property of the Seller, then (i) this
Agreement shall also be deemed to be a security agreement within the meaning of Article 9
of the applicable Uniform Commercial Code; (ii) the transfer of the Subsequent Mortgage
Loans provided for herein shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the Subsequent
Mortgage Loans and all amounts payable to the holders of the Subsequent Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other property, to the
extent the Purchaser would otherwise be entitled to own such Subsequent Mortgage Loans and
proceeds pursuant to Section 4 hereof, including all amounts, other than investment
earnings, from time to time held or invested in any accounts created pursuant to the
Pooling and Servicing Agreement, whether in the form of cash, instruments, securities or
other property; (iii) the possession by the Purchaser or the Trustee of Mortgage Notes and
such other items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-313 (or comparable provision) of the
applicable Uniform Commercial Code; and (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, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest under applicable law. Any assignment of the
interest of the Purchaser pursuant to any provision hereof or pursuant to the Pooling and
Servicing Agreement shall also be deemed to be an assignment of any security interest
created hereby. The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be reasonably necessary to ensure that, if this
Agreement were deemed to create a security interest in the Subsequent Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of the Pooling and
Servicing Agreement.
SECTION 7. Representations and Warranties of Seller Concerning the Subsequent
Mortgage Loans. The Seller hereby represents and warrants to the
Purchaser as of the Subsequent Transfer Date, or such other date as may be specified below
with respect to each Subsequent Mortgage Loan being sold by it, that:
(i) the information set forth in the Subsequent Mortgage Loan Schedule hereto
is true and correct in all material respects and the information provided to the
Rating Agencies, including the Mortgage Loan level detail, is true and correct
according to the Rating Agency requirements;
(ii) immediately prior to the transfer to the Purchaser, the Seller was the
sole owner of beneficial title and holder of each Mortgage and Mortgage Note relating
to the Subsequent Mortgage Loans and is conveying the same free and clear of any and
all liens, claims, encumbrances, participation interests, equities, pledges, charges
or security interests of any nature, and the Seller has full right and authority to
sell or assign the same pursuant to this Agreement;
(iii) to the best of the Seller's knowledge, each Subsequent Mortgage Loan at
the time it was made complied in all material respects with applicable state and
federal laws, including, without limitation, usury, equal credit opportunity,
disclosure, recording and all applicable anti-predatory lending laws; and, to the
best of the Seller's knowledge, each Subsequent Mortgage Loan has been serviced in
all material respects in accordance with applicable state and federal laws,
including, without limitation, usury, equal credit opportunity, disclosure, recording
and all applicable anti-predatory lending laws and the terms of the related Mortgage
Note, the Mortgage and other loan documents;
(iv) there is no monetary default existing under any Mortgage or the related
Mortgage Note and there is no material event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a default,
breach or event of acceleration; and neither the Seller, any of its affiliates nor
any servicer of any related Subsequent Mortgage Loan has taken any action to waive
any default, breach or event of acceleration; and no foreclosure action is threatened
or has been commenced with respect to the Subsequent Mortgage Loan;
(v) the terms of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or modified in any respect, except by written instruments, (x) if
required by law in the jurisdiction where the Mortgaged Property is located, or (y)
to protect the interests of the Trustee on behalf of the Certificateholders;
(vi) no selection procedure reasonably believed by the Seller to be adverse to
the interests of the Certificateholders was utilized in selecting the Subsequent
Mortgage Loans;
(vii) each Mortgage is a valid and enforceable first lien on the property
securing the related Mortgage Note and each Mortgaged Property is owned by the
Mortgagor in fee simple (except with respect to common areas in the case of
condominiums, PUDs and de minimis PUDs) or by leasehold for a term longer than the
term of the related Mortgage, subject only to (x) the lien of current real property
taxes and assessments, (y) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of such
Mortgage, such exceptions being acceptable to mortgage lending institutions generally
or specifically reflected in the appraisal obtained in connection with the
origination of the related Subsequent Mortgage Loan or referred to in the lender's
title insurance policy delivered to the originator of the related Subsequent Mortgage
Loan and (z) other matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be provided by
such Mortgage;
(viii) there is no mechanics' lien or claim for work, labor or material
affecting the premises subject to any Mortgage which is or may be a lien prior to, or
equal with, the lien of such Mortgage except those which are insured against by the
title insurance policy referred to in (xiii) below;
(ix) as of the Subsequent Cut-off Date, to the best of the Seller's knowledge,
there was no delinquent tax or assessment lien against the property subject to any
Mortgage, except where such lien was being contested in good faith and a stay had
been granted against levying on the property;
(x) there is no valid offset, defense or counterclaim to any Mortgage Note or
Mortgage, including the obligation of the Mortgagor to pay the unpaid principal and
interest on such Mortgage Note;
(xi) to the best of the Seller's knowledge, except to the extent insurance is
in place which will cover such damage, the physical property subject to any Mortgage
is free of material damage and is in good repair and there is no proceeding pending
or threatened for the total or partial condemnation of any Mortgaged Property;
(xii) to the best of the Seller's knowledge, the Mortgaged Property and all
improvements thereon comply with all requirements of any applicable zoning and
subdivision laws and ordinances;
(xiii) a lender's title insurance policy (on an ALTA or CLTA form) or
binder, or other assurance of title customary in the relevant jurisdiction therefor
in a form acceptable to Xxxxxx Xxx or Xxxxxxx Mac, was issued on the date that each
Subsequent Mortgage Loan was created by a title insurance company which, to the best
of the Seller's knowledge, was qualified to do business in the jurisdiction where the
related Mortgaged Property is located, insuring the Seller and its successors and
assigns that the Mortgage is a first priority lien on the related Mortgaged Property
in the original principal amount of the Subsequent Mortgage Loan. The Seller is the
sole insured under such lender's title insurance policy, and such policy, binder or
assurance is valid and remains in full force and effect, and each such policy, binder
or assurance shall contain all applicable endorsements including a negative
amortization endorsement, if applicable;
(xiv) at the time of origination, each Mortgaged Property was the subject of an
appraisal which conformed to the underwriting requirements of the originator of the
Subsequent Mortgage Loan;
(xv) as of the Subsequent Transfer Date, the improvements on each Mortgaged
Property securing a Subsequent Mortgage Loan are insured (by an insurer which is
acceptable to the Seller) against loss by fire and such hazards as are covered under
a standard extended coverage endorsement in the locale in which the Mortgaged
Property is located, in an amount which is not less than the lesser of the maximum
insurable value of the improvements securing such Subsequent Mortgage Loan or the
outstanding principal balance of the Subsequent Mortgage Loan, but in no event in an
amount less than an amount that is required to prevent the Mortgagor from being
deemed to be a co-insurer thereunder; if the improvement on the Mortgaged Property is
a condominium unit, it is included under the coverage afforded by a blanket policy
for the condominium project; if upon origination of the related Subsequent Mortgage
Loan, the improvements on the Mortgaged Property were in an area identified as a
federally designated flood area, a flood insurance policy is in effect in an amount
representing coverage not less than the least of (x) the outstanding principal
balance of the Subsequent Mortgage Loan, (y) the restorable cost of improvements
located on such Mortgaged Property or (z) the maximum coverage available under
federal law; and each Mortgage obligates the Mortgagor thereunder to maintain the
insurance referred to above at the Mortgagor's cost and expense;
(xvi) each Subsequent Mortgage Loan constitutes a "qualified mortgage" under
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1),
(2), (4), (5) and (6);
(xvii) each Subsequent Mortgage Loan was originated or funded by (a) a
savings and loan association, savings bank, commercial bank, credit union, insurance
company or similar institution which is supervised and examined by a federal or state
authority (or originated by (i) a subsidiary of any of the foregoing institutions,
which subsidiary is actually supervised and examined by applicable regulatory
authorities or (ii) a mortgage loan correspondent of any of the foregoing and that
was originated pursuant to the criteria established by any of the foregoing) or (b) a
mortgagee approved by the Secretary of Housing and Urban Development pursuant to
Sections 203 and 211 of the National Housing Act, as amended;
(xviii) no Subsequent Mortgage Loan was 30 or more days delinquent as of
the Subsequent Cut-off Date;
(xix) none of the Subsequent Mortgage Loans are (a) loans subject to 12 CFR
Part 226.31, 12CFR Part 226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation
implementing TILA, which implements the Home Ownership and Equity Protection Act of
1994, as amended, or (b) "high cost home," "covered" (excluding home loans defined as
"covered home loans" in the New Jersey Home Ownership Security Act of 2002 that were
originated between November 26, 2003 and July 7, 2004), "high risk home" or
"predatory" loans under any applicable state, federal or local law (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage loans
having high interest rates, points and/or fees);
(xx) no Subsequent Mortgage Loan (a) is a "high cost loan" or "covered loan"
as applicable (as such terms are defined in Standard & Poor's LEVELS® Glossary, Version
5.6b Revised as of February 7, 2005, Appendix E, attached hereto as Exhibit 4 or (b) was
originated on or after October 1, 2002 through March 6, 2003 and is governed by the Georgia
Fair Lending Act;
(xxi) no proceeds of any Subsequent Mortgage Loans in Sub-Loan Group I-2 or
Sub-Loan Group II-1 have been used to finance single-premium credit insurance policies;
(xxii) none of the Subsequent Mortgage Loans in Sub-Loan Group I-2 or
Sub-Loan Group II-1 impose a prepayment penalty for a term in excess of five years from the
origination date;
(xxiii) with respect to each Subsequent Mortgage Loan in Sub-Loan Group I-2 and
Sub-Loan Group II-1, information regarding the borrower credit files related to such
Subsequent Mortgage Loan has been furnished to credit reporting agencies in compliance with
the provisions of the Fair Credit Reporting Act and the applicable implementing regulations;
(xxiv) each Subsequent Mortgage Loan was originated in accordance with the
underwriting guidelines of the related originator;
(xxv) each original Mortgage has been recorded or is in the process of being
recorded in accordance with the requirements of Section 2.01 of the Pooling and Servicing
Agreement in the appropriate jurisdictions wherein such recordation is required to perfect
the lien thereof for the benefit of the Trust Fund;
(xxvi) the related Mortgage File contains each of the documents and
instruments listed in Section 2.01 of the Pooling and Servicing Agreement, subject to any
exceptions, substitutions and qualifications as are set forth in such Section;
(xxvii) the Subsequent Mortgage Loans are currently being serviced in
accordance with accepted servicing practices;
(xxviii) at the time of origination, each Mortgaged Property was the subject of
an appraisal which conformed to the underwriting requirements of the originator of the
Mortgage Loan, and the appraisal is in a form which was acceptable to Xxxxxx Mae or FHLMC
at the time of origination;
(xxix) none of the Subsequent Mortgage Loans that are secured by property
located in the State of Illinois are in violation of the provisions of the Illinois
Interest Act;
(xxx) with respect to each Subsequent Mortgage Loan that has a prepayment
penalty feature, each such prepayment penalty is enforceable and will be enforced by the
Seller and each prepayment penalty is permitted pursuant to federal, state and local law,
provided that (i) no Subsequent Mortgage Loan will impose a prepayment penalty for a term
in excess of five years from the date such Subsequent Mortgage Loan was originated and (ii)
such prepayment penalty is at least equal to the lesser of (A) the maximum amount permitted
under applicable law and (B) six months interest at the related Mortgage Interest Rate on
the amount prepaid in excess of 20% of the original principal balance of such Subsequent
Mortgage Loan;
(xxxi) with respect to each Subsequent Mortgage Loan in Sub-Loan Group I-2
and Sub-Loan Group II-1 and originated on or after August 1, 2004, neither the related
Mortgage nor the related Mortgage Note requires the borrower to submit to arbitration to
resolve any dispute arising out of or relating in any way to the origination of such
Subsequent Mortgage Loan;
(xxxii) no Subsequent Mortgage Loan in Sub-Loan Group I-2, Sub-Loan Group
II-1 or Sub-Loan Group II-3 is a balloon mortgage loan that has an original stated maturity
of less than seven (7) years;
(xxxiii) no Subsequent Mortgage Loan in Sub-Loan Group I-2 or Sub-Loan Group
II-1 that was originated on or after October 31, 2004, is subject to mandatory arbitration
except when the terms of the arbitration also contain a waiver provision that provides that
in the event of a sale or transfer of such Subsequent Mortgage Loan or interest in such
Subsequent Mortgage Loan to Xxxxxx Xxx, the terms of the arbitration are null and void and
cannot be reinstated. The Seller hereby agrees that the Seller or the Servicer of the
Subsequent Mortgage Loans in Sub-Loan Group I-2 and Sub-Loan Group II-1 will notify the
borrower in writing within 60 days of the sale or transfer of such Subsequent Mortgage Loan
to Xxxxxx Mae that the terms of arbitration are null and void;
(xxxiv) no borrower of a Subsequent Mortgage Loan in Sub-Loan Group I-2 or
Sub-Loan Group II-1 was encouraged or required to select a product offered by such
Subsequent Mortgage Loan's originator which is a higher cost product designed for less
creditworthy borrowers, unless at the time of such Subsequent Mortgage Loan's origination,
such borrower did not qualify taking into account credit history and debt-to-income ratios
for a lower-cost credit product then offered by the Subsequent Mortgage Loan's originator
or any affiliate of that originator. If, at the time of loan application, the borrower may
have qualified for a lower-cost product than offered by any mortgage lending affiliate of
the Sub-Loan Group I-2 or Sub-Loan Group II-1 Loan's originator, the such originator
referred the borrower's application to such affiliate for underwriting consideration;
(xxxv) the methodology used in underwriting the extension of credit for each
Mortgage Loan in Sub-Loan Group I-2 and Sub-Loan Group II-1 employs objective mathematical
principles which relate the borrower's income, assets and liabilities to the proposed
payment and such underwriting methodology does not rely on the extent of the borrower's
equity in the collateral as the principal determining factor in approving such credit
extension. Such underwriting methodology confirmed that at the time of origination
(application/approval) the borrower had a reasonable ability to make timely payments on
such Subsequent Mortgage Loan;
(xxxvi) With respect to any Subsequent Mortgage Loan in Sub-Loan Group I-2 or
Sub-Loan Group II-1 that contains a provision permitting imposition of a premium upon a
prepayment prior to maturity: (i) prior to such loan's origination, the borrower agreed to
such premium in exchange for a monetary benefit, including but not limited to a rate or fee
reduction, (ii) prior to such loan's origination, the borrower was offered the option of
obtaining a mortgage loan that did not require payment of such a premium, (iii) for loans
originated on or after September 1, 2004, the duration of the prepayment period shall not
exceed three (3) years from the date of the note, unless the loan was modified to reduce
the prepayment period to no more than three years from the date of the note and the
borrower was notified in writing of such reduction in prepayment period;
(xxxvii) no proceeds from any Subsequent Mortgage Loan in Sub-Loan Group I-2 or
Sub-Loan Group II-1 were used to purchase single premium credit insurance policies or debt
cancellation agreements as part of the origination of, or as a condition to closing, such
Subsequent Mortgage Loan in Sub-Loan Group I-2 or Sub-Loan Group II-1;
(xxxviii) all points and fees related to each Subsequent Mortgage Loan in
Sub-Loan Group I-2 and Sub-Loan Group II-1 were disclosed in writing to the mortgagor in
accordance with applicable state and federal law and regulation. Except in the case of a
Subsequent Mortgage Loan in Sub-Loan Group I-2 and Sub-Loan Group II-1 in an original
principal amount of less than $60,000 which would have resulted in an unprofitable
origination, no mortgagor was charged "points and fees" (whether or not financed) in an
amount greater than 5% of the principal amount of such loan and such 5% limitation is
calculated in accordance with Xxxxxx Mae's anti-predatory lending requirements as set forth
in the Xxxxxx Mae Selling Guide; and
(xxxix) all fees and charges (including finance charges) and whether or not
financed, assessed, collected or to be collected in connection with the origination and
servicing of each Subsequent Mortgage Loan in Sub-Loan Group I-2 and Sub-Loan Group II-1
has been disclosed in writing to the borrower in accordance with applicable state and
federal law and regulation; and
(xl) as of the Subsequent Transfer Date, each Subsequent Mortgage Loan
complied with the requirements of Section 2.07 of the Pooling and Servicing Agreement.
It is understood and agreed that the representations and warranties set forth
in this Section 7 will inure to the benefit of the Purchaser, its successors and assigns,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or assignment
of Mortgage or the examination of any Mortgage File. Upon any substitution for a
Subsequent Mortgage Loan, the representations and warranties set forth above shall be
deemed to be made by the Seller as to any Substitute Mortgage Loan as of the date of
substitution.
Upon discovery or receipt of notice by the Seller, the Purchaser or the Trustee
of a breach of any representation or warranty of the Seller set forth in this Section 7
which materially and adversely affects the value of the interests of the Purchaser, the
Certificateholders or the Trustee in any of the Subsequent Mortgage Loans delivered to the
Purchaser pursuant to this Agreement, the party discovering or receiving notice of such
breach shall give prompt written notice to the others. In the case of any such breach of a
representation or warranty set forth in this Section 7, within 90 days from the date of
discovery by the Seller, or the date the Seller is notified by the party discovering or
receiving notice of such breach (whichever occurs earlier), the Seller will (i) cure such
breach in all material respects, (ii) purchase the affected Subsequent Mortgage Loan at the
applicable Purchase Price or (iii) if within two years of the Closing Date, substitute a
qualifying Substitute Mortgage Loan in exchange for such Subsequent Mortgage Loan. The
obligations of the Seller to cure, purchase or substitute a qualifying Substitute Mortgage
Loan shall constitute the Purchaser's, the Trustee's and the Certificateholder's sole and
exclusive remedies under this Agreement or otherwise respecting a breach of representations
or warranties hereunder with respect to the Subsequent Mortgage Loans, except for the
obligation of the Seller to indemnify the Purchaser for such breach as set forth in and
limited by Section 13 hereof.
Any cause of action against the Seller or relating to or arising out of a
breach by the Seller of any representations and warranties made in this Section 7 shall
accrue as to any Subsequent Mortgage Loan upon (i) discovery of such breach by the Seller
or notice thereof by the party discovering such breach and (ii) failure by the Seller to
cure such breach, purchase such Subsequent Mortgage Loan or substitute a qualifying
Substitute Mortgage Loan pursuant to the terms hereof.
SECTION 8. Representations and Warranties Concerning the Seller. As of the date
hereof and as of the Subsequent Transfer Date, the Seller represents and warrants to the
Purchaser as to itself in the capacity indicated as follows:
(a) the Seller (i) is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and (ii) is qualified and in good
standing to do business in each jurisdiction where such qualification is necessary, except
where the failure so to qualify would not reasonably be expected to have a material adverse
effect on the Seller's business as presently conducted or on the Seller's ability to enter
into this Agreement and to consummate the transactions contemplated hereby;
(b) the Seller has full corporate power to own its property, to carry on its
business as presently conducted and to enter into and perform its obligations under this
Agreement;
(c) the execution and delivery by the Seller of this Agreement have been duly
authorized by all necessary action on the part of the Seller; and neither the execution and
delivery of this Agreement, nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Seller or its properties or the
charter or by-laws of the Seller, except those conflicts, breaches or defaults which would
not reasonably be expected to have a material adverse effect on the Seller's ability to
enter into this Agreement and to consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Seller of this Agreement
and the consummation of the transactions contemplated hereby do not require the consent or
approval of, the giving of notice to, the registration with, or the taking of any other
action in respect of, any state, federal or other governmental authority or agency, except
those consents, approvals, notices, registrations or other actions as have already been
obtained, given or made and, in connection with the recordation of the Mortgages, powers of
attorney or assignments of Mortgages not yet completed;
(e) this Agreement has been duly executed and delivered by the Seller and,
assuming due authorization, execution and delivery by the Purchaser, constitutes a valid
and binding obligation of the Seller enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally); and
(f) there are no actions, suits or proceedings pending or, to the knowledge
of the Seller, threatened against the Seller, before or by any court, administrative
agency, arbitrator or governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other matter which in the
judgment of the Seller will be determined adversely to the Seller and will, if determined
adversely to the Seller, materially and adversely affect the Seller's ability to perform
its obligations under this Agreement; and the Seller is not in default with respect to any
order of any court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this Agreement.
SECTION 9. Representations and Warranties Concerning the Purchaser. As of the date
hereof and as of the Subsequent Transfer Date, the Purchaser represents and warrants to the
Seller as follows:
(a) the Purchaser (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and (ii) is qualified and in good
standing as a foreign corporation to do business in each jurisdiction where such
qualification is necessary, except where the failure so to qualify would not reasonably be
expected to have a material adverse effect on the Purchaser's business as presently
conducted or on the Purchaser's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(b) the Purchaser has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform its obligations under
this Agreement;
(c) the execution and delivery by the Purchaser of this Agreement have been
duly authorized by all necessary corporate action on the part of the Purchaser; and neither
the execution and delivery of this Agreement, nor the consummation of the transactions
herein contemplated, nor compliance with the provisions hereof, will conflict with or
result in a breach of, or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Purchaser or its
properties or the articles of incorporation or by-laws of the Purchaser, except those
conflicts, breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Purchaser's ability to enter into this Agreement and to consummate
the transactions contemplated hereby;
(d) the execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby do not require the
consent or approval of, the giving of notice to, the registration with, or the taking of
any other action in respect of, any state, federal or other governmental authority or
agency, except those consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(e) this Agreement has been duly executed and delivered by the Purchaser and,
assuming due authorization, execution and delivery by the Seller, constitutes a valid and
binding obligation of the Purchaser enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally); and
(f) there are no actions, suits or proceedings pending or, to the knowledge
of the Purchaser, threatened against the Purchaser, before or by any court, administrative
agency, arbitrator or governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other matter which in the
judgment of the Purchaser will be determined adversely to the Purchaser and will, if
determined adversely to the Purchaser, materially and adversely affect the Purchaser's
ability to perform its obligations under this Agreement; and the Purchaser is not in
default with respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions contemplated by
this Agreement.
SECTION 10. Conditions to Closing.
(a) The obligations of the Purchaser under this Agreement will be subject to
the satisfaction, on or prior to the Subsequent Transfer Date, of the following conditions:
(1) Each of the obligations of the Seller required to be performed at
or prior to the Subsequent Transfer Date pursuant to the terms of this Agreement shall have
been duly performed and complied with in all material respects; all of the representations
and warranties of the Seller under this Agreement shall be true and correct as of the date
or dates specified in all material respects; and no event shall have occurred which, with
notice or the passage of time, would constitute a default under this Agreement, or the
Pooling and Servicing Agreement; and the Purchaser shall have received certificates to that
effect signed by authorized officers of the Seller.
(2) The Purchaser shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to the Purchaser,
duly executed by all signatories other than the Purchaser as required pursuant to the
respective terms thereof:
(i) If required pursuant to Section 3 hereof, the Amendment
dated as of the Subsequent Transfer Date and any documents referred to therein;
(ii) If required pursuant to Section 3 hereof, the Final
Subsequent Mortgage Loan Schedule containing the information set forth on Exhibit 2
hereto, one copy to be attached to each counterpart of the Amendment;
(iii) The Pooling and Servicing Agreement, in form and substance
reasonably satisfactory to the Trustee and the Purchaser, and all documents required
thereby duly executed by all signatories;
(iv) An Initial Certification of the Custodian substantially in
the form of Exhibit One to the Custodial Agreement; and
(v) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary to secure
the intended ratings from each Rating Agency for the Certificates.
(3) Each of the conditions set forth in Section 2.07 of the Pooling and
Servicing Agreement shall have been satisfied on or prior to the related Subsequent
Transfer Date.
(4) The Seller shall have furnished to the Purchaser such other
certificates of its officers or others and such other documents and opinions of counsel to
evidence fulfillment of the conditions set forth in this Agreement and the transactions
contemplated hereby as the Purchaser and its counsel may reasonably request.
(b) The obligations of the Seller under this Agreement shall be subject to
the satisfaction, on or prior to the Subsequent Transfer Date, of the following conditions:
(1) The obligations of the Purchaser required to be performed by it on
or prior to the Subsequent Transfer Date pursuant to the terms of this Agreement shall have
been duly performed and complied with in all material respects, and all of the
representations and warranties of the Purchaser under this Agreement shall be true and
correct in all material respects as of the date hereof and as of the Subsequent Transfer
Date, and no event shall have occurred which would constitute a breach by it of the terms
of this Agreement, and the Seller shall have received a certificate to that effect signed
by an authorized officer of the Purchaser.
(2) The Seller shall have received copies of all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to the
Seller, duly executed by all signatories other than the Seller as required pursuant to the
respective terms thereof:
(i) If required pursuant to Section 3 hereof, the Amendment dated
as of the Subsequent Transfer Date and any documents referred to therein;
(ii) The Pooling and Servicing Agreement, in form and substance
reasonably satisfactory to the Seller, and all documents required thereby duly
executed by all signatories;
(iii) An Initial Certification of the Custodian substantially in
the form of Exhibit One to the Custodial Agreement; and
(iv) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary to secure the
intended rating from each Rating Agency for the Certificates.
SECTION 11. Fees and Expenses. Subject to Section 16 hereof, the Seller shall pay
on the Subsequent Transfer Date or such later date as may be agreed to by the Purchaser (i)
the fees and expenses of the Seller's attorneys and the reasonable fees and expenses of the
Purchaser's attorneys, (ii) the fees and expenses of Deloitte & Touche LLP, (iii) the fees
and expenses of the Trustee, which shall include without limitation the fees and expenses
of the Trustee (and the fees and disbursements of its counsel) with respect to (A) legal
and document review of this Agreement, the Pooling and Servicing Agreement, the
Certificates and related agreements, (B) attendance at the closing of the transactions
contemplated hereby and (C) review of the Subsequent Mortgage Loans to be performed by the
Trustee, (iv) the fees and expenses of each Rating Agency (both initial and ongoing), (v)
the fees and expenses relating to the preparation and recordation of mortgage assignments
(including intervening assignments, if any and if available, to evidence a complete chain
of title from the originator thereof to the Trustee) from the Seller to the Trustee or the
expenses relating to the Opinion of Counsel referred to in Section 6(a) hereof, as the case
may be, and (vi) Mortgage File due diligence expenses and other out-of-pocket expenses
incurred by the Purchaser in connection with the purchase of the Subsequent Mortgage
Loans. The Seller additionally agrees to pay directly to any third party on a timely basis
the fees provided for above which are charged by such third party and which are billed
periodically.
SECTION 12. Accountants' Letters. Deloitte & Touche LLP will review the
characteristics of a sample of the Subsequent Mortgage Loans described in the Final
Subsequent Mortgage Loan Schedule and will compare those characteristics to the standards
of the Subsequent Mortgage Loans contained in the Prospectus Supplement under the heading
"The Mortgage Pool--Conveyance of Subsequent Mortgage Loans and the Pre-Funding Account."
The Seller will cooperate with the Purchaser in making available all information and taking
all steps reasonably necessary to permit such accountants to complete the review and to
deliver the letters required of them under the Underwriting Agreement.
SECTION 13. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser and its
directors, officers and controlling persons (as such term is used in Section 15 of the
Securities Act) from and against any loss, claim, damage or liability or action in respect
thereof, to which they or any of them may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is
based upon (i) any representation or warranty assigned or made by the Seller in Section 7
or Section 8 hereof being, or alleged to be, untrue or incorrect, or (ii) any failure by
the Seller to perform its obligations under this Agreement; and the Seller shall reimburse
the Purchaser and each other indemnified party for any legal and other expenses reasonably
incurred by them in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action.
The foregoing indemnity agreement is in addition to any liability which the
Seller otherwise may have to the Purchaser or any other such indemnified party.
(b) The Purchaser shall indemnify and hold harmless the Seller and its
respective directors, officers and controlling persons (as such term is used in Section 15
of the Securities Act) from and against any loss, claim, damage or liability or action in
respect thereof, to which they or any of them may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is
based upon (i) any representation or warranty made by the Purchaser in Section 9 hereof
being, or alleged to be, untrue or incorrect, or (ii) any failure by the Purchaser to
perform its obligations under this Agreement; and the Purchaser shall reimburse the Seller,
and each other indemnified party for any legal and other expenses reasonably incurred by
them in connection with investigating or defending or preparing to defend any such loss,
claim, damage, liability or action. The foregoing indemnity agreement is in addition to
any liability which the Purchaser otherwise may have to the Seller or any other such
indemnified party.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in writing of
the commencement thereof (but the failure so to notify an indemnifying party shall not
relieve such indemnified party from any liability which it may have under this Section 13
except to the extent that it has been prejudiced in any material respect by such failure or
from any liability which it may have otherwise). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to the extent
it may elect by written notice delivered to the indemnified party promptly (but, in any
event, within 30 days) after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying parties in
connection with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a reasonable time
after notice of commencement of the action, or (iii) such indemnified party or parties
shall have reasonably concluded that there is a conflict of interest between itself or
themselves and the indemnifying party in the conduct of the defense of any claim or that
the interests of the indemnified party or parties are not substantially co-extensive with
those of the indemnifying party (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or parties),
in any of which events such fees and expenses shall be borne by the indemnifying parties
(provided, however, that the indemnifying party shall be liable only for the fees and
expenses of one counsel in addition to one local counsel in the jurisdiction involved.
Anything in this subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement or any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld.
(d) If the indemnification provided for in paragraphs (a) and (b) of this
Section 13 shall for any reason be unavailable to an indemnified party in respect of any
loss, claim, damage or liability, or any action in respect thereof, referred to in this
Section 13, then the indemnifying party shall, in lieu of indemnifying the indemnified
party, contribute to the amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect thereof, in such proportion as
shall be appropriate to reflect the relative benefits received by the Seller on the one
hand and the Purchaser on the other from the purchase and sale of the Subsequent Mortgage
Loans, the offering of the Certificates and the other transactions contemplated hereunder.
No person found liable for a fraudulent misrepresentation shall be entitled to contribution
from any person who is not also found liable for such fraudulent misrepresentation.
(e) The parties hereto agree that reliance by an indemnified party on any
publicly available information or any information or directions furnished by an
indemnifying party shall not constitute negligence, bad faith or willful misconduct by such
indemnified party.
SECTION 14. Notices.All demands, notices and communications hereunder shall be in
writing but may be delivered by facsimile transmission subsequently confirmed in writing.
Notices to the Seller shall be directed to EMC Mortgage Corporation, MacArthur Ridge II,
000 Xxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx, 00000 (Telecopy: (972-444-2880)), and
notices to the Purchaser shall be directed to Structured Asset Mortgage Investments II
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Telecopy: (212-272-7206)), Attention:
Xxxxx Xxxxxxxxxxx; or to any other address as may hereafter be furnished by one party to
the other party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date received at the premises of the addressee (as
evidenced, in the case of registered or certified mail, by the date noted on the return
receipt) provided that it is received on a Business Day during normal business hours and,
if received after normal business hours, then it shall be deemed to be received on the next
Business Day.
SECTION 15. Transfer of Subsequent Mortgage Loans. The Purchaser retains the right
to assign the Subsequent Mortgage Loans and any or all of its interest under this Agreement
to the Trustee without the consent of the Seller, and, upon such assignment, the Trustee
shall succeed to the applicable rights and obligations of the Purchaser hereunder;
provided, however, the Purchaser shall remain entitled to the benefits set forth in
Sections 11, 13 and 17 hereto and as provided in Section 2(a). Notwithstanding the
foregoing, the sole and exclusive right and remedy of the Trustee with respect to a breach
of representation or warranty of the Seller shall be the cure, purchase or substitution
obligations of the Seller contained in Sections 5 and 7 hereof.
SECTION 16. Termination. This Agreement may be terminated (a) by the mutual consent
of the parties hereto prior to the Subsequent Transfer Date, (b) by the Purchaser, if the
conditions to the Purchaser's obligation to close set forth under Section 10(a) hereof are
not fulfilled as and when required to be fulfilled or (c) by the Seller, if the conditions
to the Seller's obligation to close set forth under Section 10(b) hereof are not fulfilled
as and when required to be fulfilled. In the event of termination pursuant to clause (b),
the Seller shall pay, and in the event of termination pursuant to clause (c), the Purchaser
shall pay, all reasonable out-of-pocket expenses incurred by the other in connection with
the transactions contemplated by this Agreement. In the event of a termination pursuant to
clause (a), each party shall be responsible for its own expenses.
SECTION 17. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or contained in
certificates of officers of the Seller submitted pursuant hereto, shall remain operative
and in full force and effect and shall survive delivery of the Subsequent Mortgage Loans to
the Purchaser (and by the Purchaser to the Trustee). Subsequent to the delivery of the
Subsequent Mortgage Loans to the Purchaser, the Seller's representations and warranties
contained herein with respect to the Subsequent Mortgage Loans shall be deemed to relate to
the Subsequent Mortgage Loans actually delivered to the Purchaser and included in the Final
Subsequent Mortgage Loan Schedule and any Substitute Mortgage Loan, and not to those
Subsequent Mortgage Loans deleted from the Preliminary Subsequent Mortgage Loan Schedule
pursuant to Section 3 hereof prior to the closing of the transactions contemplated hereby
or any Deleted Subsequent Mortgage Loan.
SECTION 18. Severability. If any provision of this Agreement shall be prohibited or
invalid under applicable law, the Agreement shall be ineffective only to such extent,
without invalidating the remainder of this Agreement.
SECTION 19. Counterparts. This Agreement may be executed in counterparts, each of
which will be an original, but which together shall constitute one and the same agreement.
SECTION 20. Amendment. This Agreement cannot be amended or modified in any manner
without the prior written consent of each party.
SECTION 21. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND
PERFORMED IN THE STATE OF NEW YORK AND SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF
SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
SECTION 22. Further Assurances. Each of the parties agrees to execute and deliver
such instruments and take such actions as another party may, from time to time, reasonably
request in order to effectuate the purpose and to carry out the terms of this Agreement,
including any amendments hereto which may be required by either Rating Agency.
SECTION 23. Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and their permitted successors and assigns and, to the extent
specified in Section 13 hereof, Bear Xxxxxxx, and their directors, officers and controlling
persons (within the meaning of federal securities laws). The Seller acknowledges and
agrees that the Purchaser may assign its rights under this Agreement (including, without
limitation, with respect to the Seller's representations and warranties respecting the
Subsequent Mortgage Loans) to the Trustee. Any person into which the Seller may be merged
or consolidated (or any person resulting from any merger or consolidation involving the
Seller), any person resulting from a change in form of the Seller or any person succeeding
to the business of the Seller, shall be considered the "successor" of the Seller hereunder
and shall be considered a party hereto without the execution or filing of any paper or any
further act or consent on the part of any party hereto. Except as provided in the two
preceding sentences and in Section 15 hereto, this Agreement cannot be assigned, pledged or
hypothecated by either party hereto without the written consent of the other parties to
this Agreement and any such assignment or purported assignment shall be deemed null and
void.
SECTION 24. The Seller and the Purchaser. The Seller and the Purchaser will keep in
full effect all rights as are necessary to perform their respective obligations under this
Agreement.
SECTION 25. Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties with respect to the subject matter hereof, and supersedes
all prior and contemporaneous agreements, understandings, inducements and conditions,
express or implied, oral or written, of any nature whatsoever with respect to the subject
matter hereof.
SECTION 26. No Partnership. Nothing herein contained shall be deemed or construed to
create a partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective duly authorized officers as of the date first above written.
EMC MORTGAGE CORPORATION
By: ______________________________
Name:
Title:
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
By: ______________________________
Name:
Title:
EXHIBIT 1
CONTENTS OF MORTGAGE FILE
With respect to each Subsequent Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the Purchaser or
its designee, and which shall be delivered to the Purchaser or its designee pursuant to the
terms of the Agreement.
(i) The original Mortgage Note, endorsed without recourse to the order of the
Trustee and showing an unbroken chain of endorsements from the original payee thereof
to the Person endorsing it to the Trustee, or a lost note affidavit;
(ii) The original Mortgage and, if the related Subsequent Mortgage Loan is a
MOM Loan, noting the presence of the MIN and language indicating that such Subsequent
Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is
not available, a copy), with evidence of such recording indicated thereon (or if the
original Security Instrument, assignments to the Trustee or intervening assignments
thereof which have been delivered, are being delivered or will, upon receipt of
recording information relating to the Security Instrument required to be included
thereon, be delivered to recording offices for recording and have not been returned
to the Seller in time to permit their recording as specified in Section 2.01(b) of
the Pooling and Servicing Agreement, shall be in recordable form);
(iii) Unless the Subsequent Mortgage Loan is registered on the MERS® System, a
certified copy of the assignment (which may be in the form of a blanket assignment if
permitted in the jurisdiction in which the Mortgaged Property is located) to
"JPMorgan Chase Bank, National Association, as Trustee," with evidence of recording
with respect to each Subsequent Mortgage Loan in the name of the Trustee thereon (or
if the original Security Instrument, assignments to the Trustee or intervening
assignments thereof which have been delivered, are being delivered or will, upon
receipt of recording information relating to the Security Instrument required to be
included thereon, be delivered to recording offices for recording and have not been
returned to the Seller in time to permit their delivery as specified in Section
2.01(b) of the Pooling and Servicing Agreement, the Seller may deliver a true copy
thereof with a certification by the Seller, on the face of such copy, substantially
as follows: "Certified to be a true and correct copy of the original, which has been
transmitted for recording");
(iv) All intervening assignments of the Security Instrument, if applicable and
only to the extent available to the Seller with evidence of recording thereon;
(v) The original or a copy of the policy or certificate of primary mortgage
guaranty insurance, to the extent available, if any;
(vi) The original policy of title insurance or mortgagee's certificate of
title insurance or commitment or binder for title insurance; and
(vii) The originals of all assumption and modification agreements, if
applicable and available.
EXHIBIT 2
SUBSEQUENT MORTGAGE LOAN SCHEDULE INFORMATION
The Preliminary and Final Subsequent Mortgage Loan Schedules shall set forth
the following information with respect to each Subsequent Mortgage Loan:
(i) the loan number;
(ii) the Mortgagor's name;
(iii) the city, state and zip code of the Mortgaged Property;
(iv) identify type of Subsequent Mortgage Loan, e.g. HUD, VA, FHA or
conventional;
(v) the property type;
(vi) the Mortgage Interest Rate;
(vii) the Servicing Fee;
(viii) the origination date;
(ix) the Net Rate;
(x) the original term;
(xi) the maturity date;
(xii) the stated remaining term to maturity;
(xiii) the original Principal Balance;
(xiv) the first payment date;
(xv) the principal and interest payment in effect as of the Subsequent Cut-off
Date;
(xvi) the unpaid Principal Balance as of the Subsequent Cut-off Date;
(xvii) the Loan-to-Value Ratio;
(xviii) the paid-through date;
(xix) the amount of the Scheduled Payment;
(xx) the number of days delinquent, if any;
(xxi) a code indicating whether the Subsequent Mortgage Loan is negatively
amortizing;
(xxii) the Index;
(xxiii) the next Interest Adjustment Date;
(xxiv) the Gross Margin;
(xxv) the Minimum Mortgage Rate and Maximum Mortgage Rate;
(xxvi) the Periodic Rate Cap; and
(xxvii) the Servicing Fee Rate.
Such schedule also shall set forth for all of the Subsequent Mortgage Loans and
for all the Subsequent Mortgage Loans being sold, the total number of Subsequent Mortgage
Loans, the total of each of the amounts described under (xiii) and (xvi) above, the
weighted average by principal balance as of the Subsequent Cut-off Date of each of the
rates described under (vi), (ix) and (xxvii) above, and the weighted average remaining term
to maturity by unpaid principal balance as of the Subsequent Cut-off Date.
E-3-1
EXHIBIT 3
SCHEDULE OF LOST NOTES
Available Upon Request
E-6-7
EXHIBIT 4
Standard & Poor's LEVELS® Glossary, Version 5.6b Revised, Appendix E
REVISED February 7, 0000
XXXXXXXX X - Standard & Poor's Anti-Predatory Lending Categorization
Standard & Poor's has categorized loans governed by anti-predatory lending laws in the
Jurisdictions listed below into three categories based upon a combination of factors that
include (a) the risk exposure associated with the assignee liability and (b) the tests and
thresholds set forth in those laws. Note that certain loans classified by the relevant
statute as Covered are included in Standard & Poor's High Cost Loan Category because they
included thresholds and tests that are typical of what is generally considered High Cost by
the industry.
Standard & Poor's High Cost Loan Categorization
--------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection High Cost Home Loan
Act, Ark. Code Xxx. §§ 00-00-000
et seq.
Effective July 16, 2003
--------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Code §§ 757.01 et seq.
Effective June 2, 2003
--------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. Xxx. §§ 5-3.5-101 et seq.
Effective for covered loans
offered or entered into on or
after January 1, 2003. Other
provisions of the Act took effect
on June 7, 2002
--------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan High Cost Home Loan
Lending Practices Act, Conn. Gen.
Stat. §§ 36a-746 et seq.
Effective October 1, 2001
--------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Covered Loan
Code §§ 26-1151.01 et seq.
Effective for loans closed on or
after January 28, 2003
--------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. High Cost Home Loan
§§ 494.0078 et seq.
Effective October 2, 2002
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. High Cost Home Loan
- Mar. 6, 2003) Code Xxx. §§ 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
-------------------------------------------------------------------------------
Georgia as amended Georgia Fair Lending Act, Ga. High Cost Home Loan
(Mar. 7, 2003 - Code Xxx. §§ 7-6A-1 et seq.
current)
Effective for loans closed on or
after March 7, 2003
--------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity High Cost Loan
Protection Act of 1994, 15 U.S.C.
§ 1639, 12 C.F.R. §§ 226.32 and
226.34
Effective October 1, 1995,
amendments October 1, 2002
--------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. High Risk Home Loan
Comp. Stat. tit. 815, §§ 137/5 et
seq.
Effective January 1, 2004 (prior
to this date, regulations under
Residential Mortgage License Act
effective from July 14, 2001)
--------------------------------------------------------------------------------
Indiana Indiana Home Loan Practices Act, High Cost Home Loan
Ind. Code Xxx. §§ 24-9-1-1 et
seq.
Effective for loans originated on
or after January 1, 2005.
--------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. High Loan to Value
Xxx. §§ 16a-1-101 et seq. Consumer Loan (id. §
16a-3-207) and;
Sections 16a-1-301 and 16a-3-207
became effective April 14, 1999;
Section 16a-3-308a became
effective July 1, 1999
--------------------------------------------------------------------------------
High APR Consumer
Loan (id. §
16a-3-308a)
--------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat. §§
360.100 et seq.
Effective June 24, 2003
--------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. High Rate High Fee
tit. 9-A, §§ 8-101 et seq. Mortgage
Effective September 29, 1995 and
as amended from time to time
--------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. High Cost Home Loan
§§ 32.00 et seq. and 209 C.M.R.
§§ 40.01 et seq.
Effective March 22, 2001 and
amended from time to time
--------------------------------------------------------------------------------
Massachusetts Predatory Home Loan High Cost Home
Practices Act Mortgage Loan
Mass. Gen. Laws ch. 183C, §§ 1
et seq.
Effective November 7, 2004
--------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Home Loan
Stat. §§ 598D.010 et seq.
Effective October 1, 2003
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership High Cost Home Loan
Security Act of 2002, N.J. Rev.
Stat. §§ 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
--------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. High Cost Home Loan
Rev. Stat. §§ 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
--------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made
on or after April 1, 2003
--------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Loan
High Cost Home Loans, N.C. Gen.
Stat. §§ 24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
--------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various Covered Loan
sections of the Ohio Code), Ohio
Rev. Code Xxx. §§ 1349.25 et seq.
Effective May 24, 2002
--------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in Subsection 10
various sections of Title 14A) Mortgage
Effective July 1, 2000; amended
effective January 1, 2004
--------------------------------------------------------------------------------
South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home Loans Act, S.C.
Code Xxx. §§ 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
--------------------------------------------------------------------------------
West Virginia West Virginia Residential West Virginia
Mortgage Lender, Broker and Mortgage Loan Act
Servicer Act, W. Va. Code Xxx. §§ Loan
31-17-1 et seq.
Effective June 5, 2002
--------------------------------------------------------------------------------
Standard & Poor's Covered Loan Categorization
--------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. Covered Loan
- Mar. 6, 2003) Code Xxx. §§ 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Covered Home Loan
Security Act of 2002, N.J. Rev.
Stat. §§ 46:10B-22 et seq.
Effective November 27, 2003 -
July 5, 2004
--------------------------------------------------------------------------------
Standard & Poor's Home Loan Categorization
--------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. Home Loan
- Mar. 6, 2003) Code Xxx. §§ 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Home Loan
Security Act of 2002, N.J. Rev.
Stat. §§ 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
--------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Home Loan
Rev. Stat. §§ 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
--------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on Consumer Home Loan
High Cost Home Loans, N.C. Gen.
Stat. §§ 24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
--------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Loan
Consumer Home Loans Act, S.C.
Code Xxx. §§ 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
--------------------------------------------------------------------------------
SCHEDULE A
REQUIRED RATINGS FOR EACH CLASS OF CERTIFICATES
Certificates
Certificates S&P Moodys
Class I-1A-1 AAA Aaa
Class I-1A-2 AAA Aaa
Class I-2A-1 AAA Aaa
Class I-2A-2 AAA Aaa
Class I-2A-3 AAA Aaa
Class II-1A-1 AAA Aaa
Class II-2A-1 AAA Aaa
Class II-2A-2 AAA Aaa
Class II-3A-1 AAA Aaa
Class II-4A-1 AAA Aaa
Class II-5A-1 AAA Aaa
Class II-6A-1 AAA Aaa
Class I-M-1 AA Aa2
Class I-M-2 A A2
Class I-B-1 BBB Baa2
Class I-B-2 BBB- Baa3
Class I-B-3 BB Ba2
Class II-B-1 AA+ Aa1
Class II-B-2 AA Aa2
Class II-B-3 AA Aa3
Class II-B-4 AA- A1
Class II-B-5 A+ A2
Class XX-X-0 X X0
Xxxxx XX-X-0 X- Xxx0
Class II-B-8 BBB+ Baa2
Class II-B-9 BBB Baa3
Class II-B-10 BB NA
Class II-B-11 B NA
--------------------------------------------------------------------------------------------
The Class XP, Class B-IO, Class R, Class R-X and Class II-B-12 Certificates have not been
rated.
None of the above ratings has been lowered, qualified or withdrawn since the dates of
issuance of such ratings by the Rating Agencies.
SCHEDULE B
MORTGAGE LOAN SCHEDULE
(Provided upon request)
EXHIBIT L
FORM OF SUBSEQUENT TRANSFER INSTRUMENT
Pursuant to this Subsequent Transfer Instrument, dated September 30, 2005 (this
"Instrument"), between Structured Asset Mortgage Investments II Inc., as seller (the
"Seller"), and JPMorgan Chase Bank, National Association, as trustee of the Bear Xxxxxxx
ALT-A Trust, Mortgage Pass-Through Certificates, Series 2005-9, as purchaser (the
"Trustee"), and pursuant to the Pooling and Servicing Agreement, dated as of September 1,
2005 (the "Pooling and Servicing Agreement"), among the Seller, as the seller, Xxxxx Fargo
Bank, National Association, as master servicer and securities administrator, EMC Mortgage
Corporation and the Trustee, as trustee, the Seller and the Trustee agree to the sale by
the Seller and the purchase by the Trustee in trust, on behalf of the Trust, of the
Subsequent Mortgage Loans listed on the Schedule of Mortgage Loans attached to this
Instrument as Exhibit 1 hereto (the "Subsequent Mortgage Loans").
Capitalized terms used but not otherwise defined herein shall have the meanings
set forth in the Pooling and Servicing Agreement.
Section 1. Conveyance of Subsequent Mortgage Loans.
(a) The Seller does hereby sell, transfer, assign, set over and convey to the
Trustee in trust, on behalf of the Trust, without recourse, all of its right, title and
interest in and to the Subsequent Mortgage Loans, and including all amounts due or accruing
on the Subsequent Mortgage Loans on and after the related Subsequent Cut-off Date, and all
items with respect to the Subsequent Mortgage Loans to be delivered pursuant to Section
2.07 of the Pooling and Servicing Agreement; provided, however, that the Seller reserves
and retains all right, title and interest in and to amounts due on the Subsequent Mortgage
Loans prior to the related Subsequent Cut-off Date. The Seller, contemporaneously with the
delivery of this Agreement, has delivered or caused to be delivered to the Trustee each
item with respect to the Subsequent Mortgage Loans set forth in Section 2.01 of the Pooling
and Servicing Agreement and the other items in the related Mortgage Files. The transfer to
the Trustee by the Seller of the Subsequent Mortgage Loans identified on the Mortgage Loan
Schedule shall be absolute and is intended by the Seller, the Mortgage Loan Seller, the
Master Servicer, the Securities Administrator, the Trustee and the Certificateholders to
constitute and to be treated as a sale of the Subsequent Mortgage Loans by the Seller to
the Trust Fund.
(b) The Seller, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for
the benefit of the Certificateholders all the right, title and interest of the Seller in,
to and under the Subsequent Mortgage Loan Purchase Agreement, dated as of September 30,
2005, between EMC Mortgage Corporation, as seller, and the Seller, as purchaser (the
"Purchase Agreement").
Section 2. Representations and Warranties; Conditions Precedent.
(a) The Seller hereby confirms that each of the conditions precedent and the
representations and warranties set forth in Section 2.07 of the Pooling and Servicing
Agreement are satisfied as of the date hereof.
(b) All terms and conditions of the Pooling and Servicing Agreement are
hereby ratified and confirmed; provided, however, that in the event of any conflict, the
provisions of this Instrument shall control over the conflicting provisions of the Pooling
and Servicing Agreement.
Section 3. Recordation of Instrument.
To the extent permitted by applicable law, this Instrument, or a memorandum
thereof if permitted under applicable law, is subject to recordation in all appropriate
public offices for real property records in all of the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are situated,
and in any other appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the Certificateholders' expense on direction of the
related Certificateholders, but only when accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests of the
Certificateholders or is necessary for the administration or servicing of the Subsequent
Mortgage Loans.
Section 4. Governing Law.
This Instrument shall be construed in accordance with the laws of the State of
New York and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws, without giving effect to principles of conflicts
of law.
Section 5. Counterparts.
This Instrument may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute one and the same
instrument.
Section 6. Successors and Assigns.
This Instrument shall inure to the benefit of and be binding upon the Seller
and the Trustee and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as Seller
By:
Name:
Title:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Trustee
By:
Name:
Title:
EXHIBIT M
FORM OF TRUSTEE LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that JPMorgan Chase Bank, National Association, a New
York banking corporation, having a place of business at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx,
Xxx Xxxx, X.X. 00000, as Trustee (and in no personal or other representative
capacity) under the Pooling and Servicing Agreement, dated as of September 1, 2005,
by and among Structured Asset Mortgage Investments II Inc., the Trustee, Xxxxx Fargo
Bank, National Association and EMC Mortgage Corporation (as amended, restated,
supplemented or otherwise modified from time to time, the "Agreement"; capitalized
terms not defined herein have the definitions assigned to such terms in the
Agreement), relating to the Bear Xxxxxxx ALT-A Trust 2005-9, Mortgage Pass-Through
Certificates, Series 2005-9, hereby appoints _______________, in its capacity as a
Servicer under the Agreement, as the Trustee's true and lawful Special
Attorney-in-Fact, in the Trustee's name, place and stead and for the Trustee's
benefit, but only in its capacity as Trustee aforesaid, to perform all acts and
execute all documents as may be customary, necessary and appropriate to effectuate
the following enumerated transactions in respect of any mortgage, deed of trust,
promissory note or real estate owned from time to time owned (beneficially or in
title, whether the Trustee is named therein as mortgagee or beneficiary or has become
mortgagee or beneficiary by virtue of endorsement, assignment or other conveyance) or
held by or registered to the Trustee (directly or through custodians or nominees), or
in respect of which the Trustee has a security interest or other lien, all as
provided under the applicable Agreement and only to the extent the respective Trustee
has an interest therein under the Agreement, and in respect of which the Servicer is
acting as servicer pursuant to the Agreement (the "Mortgage Documents").
This appointment shall apply to the following enumerated transactions under the Agreement
only:
1. The modification or re-recording of any Mortgage Document for the purpose of
correcting it to conform to the original intent of the parties thereto or to correct title
errors discovered after title insurance was issued and where such modification or
re-recording does not adversely affect the lien under the Mortgage Document as insured.
2. The subordination of the lien under a Mortgage Document to an easement in favor of a
public utility company or a state or federal agency or unit with powers of eminent domain
including, without limitation, the execution of partial satisfactions/releases, partial
reconveyances and the execution of requests to trustees to accomplish same.
3. The conveyance of the properties subject to a Mortgage Document to the applicable
mortgage insurer, or the closing of the title to the property to be acquired as real estate
so owned, or conveyance of title to real estate so owned.
4. The completion of loan assumption and modification agreements in respect of Mortgage
Documents.
5. The full or partial satisfaction/release of a Mortgage Document or full conveyance
upon payment and discharge of all sums secured thereby, including, without limitation,
cancellation of the related note.
6. The assignment of any Mortgage Document, in connection with the repurchase of the
mortgage loan secured and evidenced thereby.
7. The full assignment of a Mortgage Document upon payment and discharge of all sums
secured thereby in conjunction with the refinancing thereof, including, without limitation,
the assignment of the related note.
8. With respect to a Mortgage Document, the foreclosure, the taking of a deed in lieu of
foreclosure, or the completion of judicial or non-judicial foreclosure or termination,
cancellation or rescission of any such foreclosure, including, without limitation, any and
all of the following acts:
a. the substitution of trustee(s) serving under a deed of trust, in accordance with
state law and the deed of trust;
b. the preparation and issuance of statements of breach or non-performance;
c. the preparation and filing of notices of default and/or notices of sale;
d. the cancellation/rescission of notices of default and/or notices of sale;
e. the taking of a deed in lieu of foreclosure; and
f. the preparation and execution of such other documents and performance of such
other actions as may be necessary under the terms of the Mortgage Document or
state law to expeditiously complete said transactions in paragraphs 8(a)
through 8(e), above.
9. Demand, xxx for, recover, collection and receive each and every sum of money, debt,
account and interest (which now is, or hereafter shall become due and payable) belonging to
or claimed by the Trustee under the Mortgage Documents, and to use or take any lawful means
for recovery thereof by legal process or otherwise.
10. Endorse on behalf of the Trustee all checks, drafts and/or negotiable instruments
made payable to the Trustee in respect of the Mortgage Documents.
The Trustee gives the Special Attorney-in-Fact full power and authority to execute such
instruments and to do and perform all and every act and thing necessary and proper to carry
into effect the power or powers granted by this Limited Power of Attorney, subject to the
terms and conditions set forth in the Agreement including the standard of care applicable
to servicers in the Agreement, and hereby does ratify and confirm what such Special
Attorney-in-Fact shall lawfully do or cause to be done by authority hereof.
IN WITNESS WHEREOF, the Trustee has caused its corporate name and seal to be hereto signed
and affixed and these presents to be acknowledged by its duly elected and authorized
officer this ___ day of ___ , 2005.
JPMorgan Chase
Bank, National Association, as Trustee
By:
Name:
Title:
WITNESS: WITNESS:
_______________________________ _______________________________
Name: Name:
Title: Title:
XXXXX XX XXX XXXX
XX
XXXXXX XX XXX XXXX
Xx ______________, 2004, before me, the undersigned, a Notary Public in and for said
state, personally appeared __________________, personally known to me to be the person
whose name is subscribed to the within instrument, and such person acknowledged to me that
such person executed the within instrument in such person's authorized capacity, and that
by such signature on the within instrument the entity upon behalf of which such person
acted executed the instrument.
WITNESS my hand and official seal.
______________________________
Notary Public
(1) Please contact Bear, Xxxxxxx & Co. Inc. for Acquisition Price.
