NOMURA ASSET ACCEPTANCE CORPORATION, Depositor NOMURA CREDIT & CAPITAL, INC., Seller GMAC MORTGAGE CORPORATION, a Servicer WELLS FARGO BANK, NATIONAL ASSOCIATION, Master Servicer and Securities Administrator and

EXHIBIT 4.1

 

 

NOMURA ASSET ACCEPTANCE CORPORATION,

Depositor

 

NOMURA CREDIT & CAPITAL, INC.,

Seller

 

GMAC MORTGAGE CORPORATION,

a Servicer

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

Master Servicer and Securities Administrator

and

 

HSBC BANK USA, NATIONAL ASSOCIATION

Trustee

____________________

 

POOLING AND SERVICING AGREEMENT

Dated as of August 1, 2005

________________________________________

NOMURA ASSET ACCEPTANCE CORPORATION

MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AP3

 

 

 

TABLE OF CONTENTS

 

ARTICLE I

DEFINITIONS

Section 1.01	Defined Terms.
Section 1.02	Allocation of Certain Interest Shortfalls.

ARTICLE II

CONVEYANCE OF TRUST FUND REPRESENTATIONS AND WARRANTIES

Section 2.01	Conveyance of Trust Fund.
Section 2.02	Acceptance of the Mortgage Loans.
Section 2.03	Representations, Warranties and Covenants of GMACM and the Seller.
Section 2.04	Representations and Warranties of the Depositor.
Section 2.05	Delivery of Opinion of Counsel in Connection with Substitutions and Repurchases.
Section 2.06	Issuance of the REMIC I Regular Interests and the Class R-1 Interest.
Section 2.07	Conveyance of the REMIC I Regular Interests; Acceptance of REMIC II by the Trustee.
Section 2.08	Conveyance of the REMIC II Regular Interests; Acceptance of REMIC III by the Trustee.
Section 2.09	Issuance of Class R Certificates.
Section 2.10	Establishment of Trust.

ARTICLE III

ADMINISTRATION AND SERVICING OF THE GMACM MORTGAGE LOANS; ACCOUNTS

Section 3.01	GMACM to act as Servicer of the GMACM Mortgage Loans.
Section 3.02	Due-on-Sale Clauses; Assumption Agreements.
Section 3.03	Subservicers.
Section 3.04	Documents, Records and Funds in Possession of GMACM To Be Held for Trustee.
Section 3.05	Maintenance of Hazard Insurance.
Section 3.06	Presentment of Claims and Collection of Proceeds.
Section 3.07	Maintenance of Insurance Policies.
Section 3.08	Reserved.

 

Section 3.09

Realization Upon Defaulted GMACM Mortgage Loans; Determination of Excess Liquidation Proceeds and Realized Losses; Repurchases of Certain GMACM Mortgage Loans.

 

Section 3.10

Servicing Compensation.

Section 3.11

REO Property.

Section 3.12

Liquidation Reports.

Section 3.13

Annual Certificate as to Compliance.

Section 3.14

Annual Independent Certified Public Accountants’ Servicing Report.

Section 3.15

Books and Records.

Section 3.16

The Trustee.

Section 3.17

REMIC-Related Covenants.

Section 3.18

Reserved.

Section 3.19

Release of Mortgage Files.

Section 3.20

Documents, Records and Funds in Possession of GMACM to be held for Trustee.

Section 3.21

Possession of Certain Insurance Policies and Documents.

Section 3.22

Reserved.

Section 3.23

UCC.

Section 3.24

Optional Purchase of Defaulted Mortgage Loans.

Section 3.25

Obligations of the Servicers under Credit Risk Management Agreement.

 

 

 

 

Section 3.26	Collection of Mortgage Loan Payments; Custodial Account maintained by GMACM.
Section 3.27	Permitted Withdrawals From the Custodial Account.
Section 3.28	Reports to Master Servicer.
Section 3.29	Collection of Taxes; Assessments and Similar Items; Escrow Accounts.
Section 3.30	Reserved.
Section 3.31	Distribution Account.
Section 3.32	Permitted Withdrawals and Transfers from the Distribution Account.
Section 3.33	Duties of the Credit Risk Manager; Termination.
Section 3.34	Limitation Upon Liability of the Credit Risk Manager.

ARTICLE IV

ADMINISTRATION AND MASTER SERVICING OF THE MORTGAGE LOANS

Section 4.01

The Master Servicer.

Section 4.02

Monitoring of Servicers.

Section 4.03

Fidelity Bond.

Section 4.04

Power to Act; Procedures.

Section 4.05

Due-on-Sale Clauses; Assumption Agreements.

Section 4.06

Documents, Records and Funds in Possession of Master Servicer To Be Held for Trustee.

Section 4.07

Standard Hazard Insurance and Flood Insurance Policies.

Section 4.08

Presentment of Claims and Collection of Proceeds.

Section 4.09

Maintenance of the Primary Mortgage Insurance Policies.

Section 4.10

Trustee to Retain Possession of Certain Insurance Policies and Documents.

Section 4.11

Realization Upon Defaulted Loans.

Section 4.12

Compensation for the Master Servicer.

Section 4.13

REO Property.

Section 4.14

Annual Officer’s Certificate as to Compliance.

Section 4.15

Reserved

Section 4.16

Reports Filed with Securities and Exchange Commission.

Section 4.17

Reserved.

Section 4.18

Obligation of the Master Servicer in Respect of Prepayment Interest Shortfalls.

ARTICLE V

ADVANCES AND DISTRIBUTIONS

Section 5.01	Advances; Advance Facility.
Section 5.02	Compensating Interest Payments.
Section 5.03	REMIC Distributions.
Section 5.04	Distributions.
Section 5.05	Allocation of Realized Losses.
Section 5.06	Monthly Statements to Certificateholders.
Section 5.07	REMIC Designations and REMIC I Allocations.
Section 5.08	REMIC II Allocations.
Section 5.09	Class P Certificate Account.
Section 5.10	Net WAC Reserve Fund.

ARTICLE VI

THE CERTIFICATES

Section 6.01	The Certificates.
Section 6.02	Certificate Register; Registration of Transfer and Exchange of Certificates.
Section 6.03	Mutilated, Destroyed, Lost or Stolen Certificates.
Section 6.04	Persons Deemed Owners.

 

 

 

 

Section 6.05	Access to List of Certificateholders’ Names and Addresses.
Section 6.06	Book-Entry Certificates.
Section 6.07	Notices to Depository.
Section 6.08	Definitive Certificates.
Section 6.09	Maintenance of Office or Agency.

ARTICLE VII

THE DEPOSITOR, GMACM AND THE MASTER SERVICER

Section 7.01	Liabilities of the Depositor, GMACM and the Master Servicer
Section 7.02	Merger or Consolidation of the Depositor, GMACM or the Master Servicer.
Section 7.03	Indemnification of Depositor and GMACM.

 

Section 7.04

Limitations on Liability of the Depositor, Securities Administrator, Master Servicer, Servicer and Others

 

Section 7.05	GMACM Not to Resign.
Section 7.06	Termination of GMACM Without Cause; Appointment of Special Servicer.
Section 7.07	Limitation on Resignation of the Master Servicer.
Section 7.08	Assignment of Master Servicing.
Section 7.09	Rights of the Depositor in Respect of the Master Servicer.

ARTICLE VIII

DEFAULT; TERMINATION OF SERVICER AND MASTER SERVICER

Section 8.01	Events of Default.
Section 8.02	Master Servicer to Act; Appointment of Successor.
Section 8.03	Notification to Certificateholders.
Section 8.04	Waiver of Servicer Defaults and Master Servicer Defaults.

ARTICLE IX

CONCERNING THE TRUSTEE AND SECURITIES ADMINISTRATOR

Section 9.01

Duties of Trustee and Securities Administrator.

Section 9.02

Certain Matters Affecting the Trustee and Securities Administrator.

Section 9.03

Trustee and Securities Administrator not Liable for Certificates or Mortgage Loans.

Section 9.04

Trustee and Securities Administrator May Own Certificates.

Section 9.05

Fees and Expenses of Trustee and Securities Administrator.

Section 9.06

Eligibility Requirements for Trustee and Securities Administrator.

Section 9.07

Resignation and Removal of Trustee and Securities Administrator.

Section 9.08

Successor Trustee or Securities Administrator.

Section 9.09

Merger or Consolidation of Trustee or Securities Administrator.

Section 9.10

Appointment of Co-Trustee or Separate Trustee.

Section 9.11

Appointment of Office or Agency.

Section 9.12

Representations and Warranties.

Section 9.13

Tax Matters.

ARTICLE X

TERMINATION

Section 10.01	Termination upon Liquidation or Repurchase of all Mortgage Loans.
Section 10.02	Final Distribution on the Certificates.
Section 10.03	Additional Termination Requirements.

 

 

 

 

ARTICLE XI

MISCELLANEOUS PROVISIONS

Section 11.01	Amendment.
Section 11.02	Recordation of Agreement; Counterparts.
Section 11.03	Governing Law.
Section 11.04	Intention of Parties.
Section 11.05	Notices.
Section 11.06	Severability of Provisions.
Section 11.07	Assignment.
Section 11.08	Limitation on Rights of Certificateholders.
Section 11.09	Certificates Nonassessable and Fully Paid.

 

 

Exhibits

Exhibit A-1

Form of Class A-[1][2][3][4][5] Certificates

Exhibit A-2

Form of Class A-IO Certificates

Exhibit A-3

Form of Class M-[1][2][3][4] Certificates

Exhibit A-4

Form of Class X Certificates

Exhibit A-5

Form of Class P Certificates

Exhibit A-6

Form of Class R Certificates

Exhibit B

Mortgage Loan Schedule

Exhibit C

Reserved

Exhibit D

Form of Transfer Affidavit

Exhibit E

Form of Transferor Certificate

Exhibit F

Form of Investment Letter (Non-Rule 144A)

Exhibit G

Form of Rule 144A Investment Letter

Exhibit H

Reserved

Exhibit I

DTC Letter of Representations

Exhibit J

Schedule of Mortgage Loans with Lost Notes

Exhibit K

Prepayment Charge Schedule

Exhibit L

Form of Servicer’s Certification

Exhibit M

Form of Trustee’s Certification

Exhibit N

Appendix E of the Standard & Poor's Glossary For File

Format For LEVELS® Version 5.6 Revised

Exhibit X-1	Standard File Layout – Delinquency Reporting
Exhibit X-2	Standard File Codes – Delinquency Reporting

 

 

 

 

POOLING AND SERVICING AGREEMENT, dated as of August 1, 2005, among NOMURA ASSET ACCEPTANCE CORPORATION, a Delaware corporation, as depositor (the “Depositor”), NOMURA CREDIT & CAPITAL, INC., a Delaware corporation, as seller (in such capacity, the “Seller”), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as master servicer (the “Master Servicer”) and securities administrator (the “Securities Administrator”), GMAC MORTGAGE CORPORATION, a Pennsylvania corporation, as a servicer (“GMACM”) and HSBC BANK USA, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity, but solely as trustee (the “Trustee”).

PRELIMINARY STATEMENT

The Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee in return for the Certificates.

REMIC I

As provided herein, the Trustee will make an election to treat the segregated pool of assets consisting of the Mortgage Loans and certain other related assets as set forth in the definition of REMIC I (and exclusive of the Cap Contract and the Net WAC Reserve Fund) subject to this Agreement as a real estate mortgage investment conduit (a “REMIC”) for federal income tax purposes, and such segregated pool of assets will be designated as “REMIC I.” The Class R-1 Interest 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, the Uncertificated REMIC I Pass-Through Rate, the Initial Uncertificated Principal Balance, and for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for each of the REMIC I Regular Interests. None of the REMIC I Regular Interests will be certificated.

Designation	Initial Uncertificated Principal Balance	Uncertificated REMIC I Pass-Through Rate	Assumed Final Maturity Date (1)
LTI-1	$236,981,917.72	Variable (2)	August 25, 2035
LTI-IO-A	$     7,635,000.00	Variable (2)	August 25, 2035
LTI-IO-B	$     3,055,000.00	Variable (2)	August 25, 2035
LTI-IO-C	$     4,580,000.00	Variable (2)	August 25, 2035
LTI-IO-D	$     4,580,000.00	Variable (2)	August 25, 2035
LTI-IO-E	$     3,055,000.00	Variable (2)	August 25, 2035
LTI-IO-F	$     3,055,000.00	Variable (2)	August 25, 2035
LTI-IO-G	$     4,275,000.00	Variable (2)	August 25, 2035
LTI-IO-H	$     7,940,000.00	Variable (2)	August 25, 2035
LTI-P	$               100.00	N/A	August 25, 2035

___________________

(1)	For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the Distribution Date in the month following the maturity date for the Mortgage Loan with the latest maturity date has been designated as the “latest possible maturity date” for each Class of Certificates that represents one or more of the “regular interests” in REMIC I.
(2)	Calculated in accordance with the definition of “Uncertificated REMIC I Pass-Through Rate” herein.

 

 

 

 

REMIC II

As provided herein, the Trustee will make an election to treat the segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC for federal income tax purposes, and such segregated pool of assets will be designated as “REMIC II”. The Class R-2 Interest will represent the sole class of “residual interests” in REMIC II for purposes of the REMIC Provisions (as defined herein) under federal income tax law. The following table irrevocably sets forth the designation, the Uncertificated REMIC II Pass-Through Rate, the Initial Uncertificated Principal Balance, and for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for each of the REMIC II Regular Interests. None of the REMIC II Regular Interests will be certificated.

Designation	Initial Uncertificated Principal Balance	Uncertificated REMIC II Pass-Through Rate	Assumed Final Maturity Date (1)
LTII-AA	$ 269,653,779.37	Variable (2)	August 25, 2035
LTII-A1	$     1,193,500.00	Variable (2)	August 25, 2035
LTII-A2	$         657,320.00	Variable (2)	August 25, 2035
LTII-A3	$         159,740.00	Variable (2)	August 25, 2035
LTII-A4	$         259,480.00	Variable (2)	August 25, 2035
LTII-A5	$         275,160.00	Variable (2)	August 25, 2035
LTII-M1	$            75,660.00	Variable (2)	August 25, 2035
LTII-M2	$            57,780.00	Variable (2)	August 25, 2035
LTII-M3	$            46,770.00	Variable (2)	August 25, 2035
LTII-M4	$            13,750.00	Variable (2)	August 25, 2035
LTII-ZZ	$       2,763,978.35	Variable (2)	August 25, 2035
LTII-IO	N/A(3)	3.50% (4)	August 25, 2035
LTII-P	$                100.00	Variable (2)	August 25, 2035

___________________

(1)	For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the Distribution Date in the month following the maturity date for the Mortgage Loan with the latest maturity date has been designated as the “latest possible maturity date” for each REMIC II Regular Interest.
(2)	Calculated in accordance with the definition of “Uncertificated REMIC II Pass-Through Rate” herein.
(3)	REMIC II Regular Interest LTII-IO will not have an Uncertificated Principal Balance, but will accrue interest on its Uncertificated Notional Amount, as defined herein.
(4)	REMIC II Regular Interest LTII-IO will accrue interest at a rate of 3.50%.

 

 

 

 

REMIC III

As provided herein, the Trustee will make an election to treat the segregated pool of assets consisting of the REMIC II Regular Interests as a REMIC for federal income tax purposes, and such segregated pool of assets will be designated as “REMIC III”. The Class R-3 Interest will represent the sole class of “residual interests” in REMIC III for purposes of the REMIC Provisions. The following table irrevocably sets forth the Class designation, Pass-Through Rate and Initial Certificate Principal Balance for each Class of Certificates that represents one or more of the “regular interests” in REMIC III created hereunder:

 

Class Designation	Initial Certificate Principal Balance	Pass-Through Rate	Assumed Final Maturity Date (1)
Class A-1	$   119,350,000	Class A-1 Pass-Through Rate	August 25, 2035
Class A-2	$     65,732,000	Class A-2 Pass-Through Rate	August 25, 2035
Class A-3	$     15,974,000	Class A-3 Pass-Through Rate	August 25, 2035
Class A-4	$     25,948,000	Class A-4 Pass-Through Rate	August 25, 2035
Class A-5	$     27,516,000	Class A-5 Pass-Through Rate	August 25, 2035
Class A-IO	N/A (2)	Class A-IO Pass-Through Rate	August 25, 2035
Class M-1	$       7,566,000	Class M-1 Pass-Through Rate	August 25, 2035
Class M-2	$       5,778,000	Class M-2 Pass-Through Rate	August 25, 2035
Class M-3	$       4,677,000	Class M-3 Pass-Through Rate	August 25, 2035
Class M-4	$       1,375,000	Class M-4 Pass-Through Rate	August 25, 2035
Class X	$  1,240,917.72 (3)	Class X Pass-Through Rate	August 25, 2035
Class P	$            100.00	N/A (4)	August 25, 2035

___________________

(1)	For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the Distribution Date in the month following the maturity date for the Mortgage Loan with the latest maturity date has been designated as the “latest possible maturity date” for each Class of Certificates.
(2)	The Class A-IO Certificates will accrue interest at the Class A-IO Pass-Through Rate on the Certificate Notional Balance of the Class A-IO Certificates calculated in accordance with the definition of “Certificate Notional Balance” herein. The Class A-IO Certificates will not be entitled to distributions in respect of principal. For federal income tax purposes, the Class A-IO Certificates will not have a Notional Amount, but will be entitled to 100% of amounts distributed on REMIC II Regular Interest LTII-IO.
(3)	The Class X Certificates will not accrue interest on their Certificate Principal Balance, but will accrue interest at the Class X Pass-Through Rate on the Certificate Notional Balance of the Class X Certificates outstanding from time to time which shall equal the aggregate of the Uncertificated Principal Balances of the REMIC II Regular Interests (other than REMIC II Regular Interest LTII-IO and REMIC II Regular Interest LTII-P).
(4)	The Class P Certificates will not be entitled to distributions in respect of interest.

In consideration of the mutual agreements herein contained, the Depositor, GMACM, the Master Servicer, the Securities Administrator, the Seller and the Trustee agree as follows:

 

 

 

ARTICLE I

 

DEFINITIONS

Section 1.01

Defined Terms .

In addition to those terms defined in Section 1.02, whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:

Accepted Master Servicing Practices : With respect to any Mortgage Loan, as applicable, either (x) those customary mortgage master 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 Master Servicer (except in its capacity as successor to a Servicer), or (y) as provided in Section 3.01 hereof, but in no event below the standard set forth in clause (x).

Account : Either the Distribution Account or the Custodial Account.

Accrual Period : With respect to the Certificates (other than the Class A-1, Class P and Class R Certificates) and any Distribution Date, the calendar month immediately preceding the calendar month in which such Distribution Date occurs. With respect to the Class A-1 Certificates and any Distribution Date, the period from and including the 25 ^th day of the calendar month preceding the calendar month in which such Distribution Date occurs (or with respect to the first Accrual Period, the Closing Date) to and including the 24 ^th day of the calendar month in which such Distribution Date occurs.

Advance : An advance of delinquent payments of principal or interest in respect of a GMACM Mortgage Loan required to be made by GMACM or by the Master Servicer pursuant to Section 5.01, by M&T pursuant to the M&T Servicing Agreement, by GreenPoint pursuant to the GreenPoint Servicing Agreement or by Wells Fargo pursuant to the Wells Fargo Servicing Agreement.

Advance Facility : As defined in Section 5.01(b)(i).

Advance Facility Notice : As defined in Section 5.01(b)(ii).

Advance Financing Person : As defined in Section 5.01(b)(i).

Advance Reimbursement Amount : As defined in Section 5.01(b)(ii).

Agreement : This Pooling and Servicing Agreement and any and all amendments or supplements hereto made in accordance with the terms herein.

Amount Held for Future Distribution : As to any Distribution Date, the aggregate amount held in the related Servicer’s Custodial Account at the close of business on the immediately preceding Determination Date on account of (i) all Scheduled Payments or portions thereof received in respect of the related Mortgage Loans due after the related Due Period and (ii)

 

 

Principal Prepayments and Liquidation Proceeds received in respect of the related Mortgage Loans after the last day of the related Prepayment Period.

Appraised Value : With respect to any Mortgage Loan originated in connection with a refinancing, the appraised value of the Mortgaged Property based upon the appraisal made at the time of such refinancing or, with respect to any other Mortgage Loan, the lesser of (x) the appraised value of the Mortgaged Property based upon the appraisal made by a fee appraiser at the time of the origination of the Mortgage Loan, and (y) the sales price of the Mortgaged Property at the time of such origination.

Authorized Servicer Representative : Any officer of any Servicer involved in, or responsible for, the administration and servicing of the Mortgage Loans (i) in the case of GMACM, whose name and facsimile signature appear on a list of servicing officers furnished to the Trustee and the Master Servicer by GMACM on the Closing Date, as such list may from time to time be amended, (ii) in the case of M&T, as to which evidence reasonably acceptable to the Trustee of due authorization by such party has been furnished from time to time to the Trustee and Master Servicer, (iii) in the case of GreenPoint, as to which evidence reasonably acceptable to the Trustee of due authorization by such party has been furnished from time to time to the Trustee and Master Servicer and (iv) in the case of Wells Fargo, as to which evidence reasonably acceptable to the Trustee of due authorization by such party has been furnished from time to time to the Trustee.

Available Distribution Amount : The sum of the Interest Remittance Amount and Principal Funds, exclusive of amounts pursuant to Section 5.09.

Bankruptcy Code : Title 11 of the United States Code.

Book-Entry Certificates : Any of the Certificates that shall be registered in the name of the Depository or its nominee, the ownership of which is reflected on the books of the Depository or on the books of a person maintaining an account with the Depository (directly, as a “Depository Participant”, or indirectly, as an indirect participant in accordance with the rules of the Depository and as described in Section 6.06). As of the Closing Date, each Class of Publicly Offered Certificates constitutes a Class of Book-Entry Certificates.

Business Day : Any day other than (i) a Saturday or a Sunday, or (ii) a day on which banking institutions in The City of New York, New York, the Commonwealth of Pennsylvania, the State of Maryland, the State of Minnesota, the city in which any Corporate Trust Office of the Trustee is located or the States in which GMACM’s servicing operations are located are authorized or obligated by law or executive order to be closed.

Cap Contract : The cap contract between the Trustee and the Cap Provider, for the benefit of the Holders of the Class A-1 Certificates.

Cap Provider : Nomura Global Financial Products, Inc., or any successor thereto.

Certificate : Any one of the certificates of any Class executed and authenticated by the Securities Administrator in substantially the forms attached hereto as Exhibits A-1 through A-6.

 

 

 

Certificate Notional Balance : With respect to the Class A-IO Certificates and any Distribution Date, the lesser of (a)(i) $34,398,000, for each Distribution Date from the Distribution Date in September 2005 to and including the Distribution Date in February 2006, (ii) $27,519,000, for each Distribution Date from the Distribution Date in March 2006 to and including the Distribution Date in June 2006, (iii) $24,766,000, for each Distribution Date from the Distribution Date in July 2006 to and including the Distribution Date in September 2006, (iv) $20,639,000, for the Distribution Date in October 2006 and the Distribution Date in November 2006, (v) $16,512,000, for each Distribution Date from and including the Distribution Date in December 2006 to and including the Distribution Date in March 2007, (vi) $13,759,000 for the Distribution Date in April 2007 and the Distribution Date in May 2007, (vii) $11,007,000 for the Distribution Date in June 2007 and the Distribution Date in July 2007, (viii) $7,155,000 for the Distribution Date in August 2007 and (ix) $0, for each Distribution Date thereafter and (b) the aggregate Stated Principal Balance of the Mortgage Loans. For United States federal income tax purposes, the Class A-IO Certificates will not have a Certificate Notional Balance, but will be entitled to 100% of amounts distributed on REMIC II Regular Interest LTII-IO. With respect to the Class X Certificates and any Distribution Date, the Uncertificated Principal Balance of the REMIC II Regular Interests (other than REMIC I Regular Interest II-LTP) for such Distribution Date. As of the Closing Date, the Certificate Notional Balance of the Class X Certificates is equal to $275,156,918.

Certificate Owner : With respect to a Book-Entry Certificate, the Person that is the beneficial owner of such Book-Entry Certificate.

Certificate Principal Balance : As to any Publicly Offered Certificate (other than any Class A-IO Certificates) and as of any Distribution Date, the Initial Certificate Principal Balance of such Certificate plus any Subsequent Recoveries added to the Certificate Principal Balance of such Certificate pursuant to Section 5.05(f) less the sum of (i) all amounts distributed with respect to such Certificate in reduction of the Certificate Principal Balance thereof on previous Distribution Dates pursuant to Section 5.04, and (ii) with respect to the Mezzanine Certificates, any reductions in the Certificate Principal Balance of such Certificate deemed to have occurred in connection with the allocations of Realized Losses, if any. References herein to the Certificate Principal Balance of a Class of Certificates shall mean the Certificate Principal Balances of all Certificates in such Class.

Certificate Register : The register maintained pursuant to Section 6.02.

Certificateholder or Holder : The person in whose name a Certificate is registered in the Certificate Register (initially, Cede & Co., as nominee for the Depository, in the case of any Book-Entry Certificates).

Class : All Certificates bearing the same Class designation as set forth in Section 6.01.

Class A-1 Certificate : Any Certificate designated as a “Class A-1 Certificate” on the face thereof, in the form of Exhibit A-1 hereto, representing the right to the Percentage Interest of distributions provided for the Class A-1 Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

 

 

 

Class A-1 Pass-Through Rate : With respect to any Distribution Date, One-Month LIBOR plus 0.13% per annum, subject to a cap equal to the Net WAC Rate Cap for such Distribution Date.

Class A-2 Certificate : Any Certificate designated as a “Class A-2 Certificate” on the face thereof, in the form of Exhibit A-1 hereto, representing the right to its Percentage Interest of distributions provided for the Class A-2 Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

Class A-2 Pass-Through Rate : With respect to any Distribution Date, 5.123% per annum, subject to a cap equal to the Net WAC Rate Cap for such Distribution Date.

Class A-3 Certificate : Any Certificate designated as a “Class A-3 Certificate” on the face thereof, in the form of Exhibit A-1 hereto, representing the right to its Percentage Interest of distributions provided for the Class A-3 Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

Class A-3 Pass-Through Rate : With respect to any Distribution Date, 5.318% per annum, subject to a cap equal to the Net WAC Rate Cap for such Distribution Date.

Class A-4 Certificate : Any Certificate designated as a “Class A-4 Certificate” on the face thereof, in the form of Exhibit A-1 hereto, representing the right to its Percentage Interest of distributions provided for the Class A-4 Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

Class A-4 Pass-Through Rate : Shall mean (i) with respect to any Distribution Date which occurs on or prior to the Optional Termination Date, 5.607% per annum and (ii) with respect to each Distribution Date which occurs thereafter, 6.107% per annum, in each case, subject to a cap equal to the Net WAC Rate Cap for such Distribution Date.

Class A-5 Certificate : Any Certificate designated as a “Class A-5 Certificate” on the face thereof, in the form of Exhibit A-1 hereto, representing the right to its Percentage Interest of distributions provided for the Class A-5 Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

Class A-5 Pass-Through Rate : Shall mean (i) with respect to any Distribution Date which occurs on or prior to the Optional Termination Date, 5.190% per annum and (ii) with respect to each Distribution Date which occurs thereafter, 5.690% per annum, in each case, subject to a cap equal to the Net WAC Rate Cap for such Distribution Date.

Class A-5 Lockout Principal Distribution Amount : With respect to any Distribution Date will be an amount equal to the lesser of (i) the Senior Principal Distribution Amount for such Distribution Date and (ii) the Class A-5 Lockout Distribution Percentage for that Distribution Date multiplied by the product of (x) a fraction, the numerator of which is the Certificate Principal Balance of the Class A-5 Certificates and the denominator of which is the aggregate Certificate Principal Balance of all of the Senior Certificates (other than the Class A-IO Certificates), in each case immediately prior to such Distribution Date and (y) the Senior Principal Distribution Amount for such Distribution Date.

 

 

 

Class A-5 Lockout Distribution Percentage : With respect to each Distribution Date, the applicable percentage set forth below:

Distribution Dates	Class A-5 Lockout Distribution Percentage
September 2005 through and including August 2008	0%
September 2008 through and including August 2010	45%
September 2010 through and including August 2011	80%
September 2011 through and including August 2012	100%
September 2012 and thereafter	300%

 

Class A-IO Certificate : Any Certificate designated as a “Class A-IO Certificate” on the face thereof, in the form of Exhibit A-2 hereto, representing the right to its Percentage Interest of distributions provided for the Class A-IO Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

Class A-IO Pass-Through Rate : Shall mean (i) for the first twenty four Distribution Dates, 3.50% per annum, subject to a cap equal to the weighted average of the Net Mortgage Rates on the Mortgage Loans and (ii) for any Distribution Date thereafter, 0.00% per annum. For federal income tax purposes, however, the Class A-IO Certificates will not have a Class A-IO Pass-Through Rate, and the Interest Distribution Amount for the Class A-IO Certificates and any Distribution Date will be deemed to be 100% of the amount distributed on REMIC II Regular Interest LTII-IO for such Distribution Date.

Class M-1 Certificate : Any Certificate designated as a “Class M-1 Certificate” on the face thereof, in the form of Exhibit A-3 hereto, representing the right to its Percentage Interest of distributions provided for the Class M-1 Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

Class M-1 Pass-Through Rate : Shall mean (i) with respect to each Distribution Date which occurs on or prior to the Optional Termination Date, 5.672% per annum and (ii) with respect to each Distribution Date which occurs thereafter, 6.172% per annum, in each case subject to a cap equal to the Net WAC Rate Cap for such Distribution Date.

Class M-1 Principal Distribution Amount : With respect to any Distribution Date which occurs (i) prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution Date, the Principal Distribution Amount for that Distribution Date remaining after distribution of the Senior Principal Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in effect for that Distribution Date, the lesser of:

•	the Principal Distribution Amount for that Distribution Date remaining after distribution of the Senior Principal Distribution Amount; and
•	the excess, if any, of (A) the aggregate Certificate Principal Balance of the Class M-1 Certificates immediately prior to that Distribution Date over (B) the positive

 

 

difference between (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after reduction for Realized Losses incurred during the related Prepayment Period) and (ii) the sum of (x) the aggregate Certificate Principal Balance of the Senior Certificates (after taking into account the payment of the Senior Principal Distribution Amount for such Distribution Date) and (y) the product of (a) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after reduction for Realized Losses incurred during the related Prepayment Period) and (b) the sum of 8.60% and the Required Overcollateralization Percentage.

Class M-2 Certificate : Any Certificate designated as a “Class M-2 Certificate” on the face thereof, in the form of Exhibit A-3 hereto, representing the right to its Percentage Interest of distributions provided for the Class M-2 Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

Class M-2 Pass-Through Rate : Shall mean (i) with respect to each Distribution Date which occurs on or prior to the Optional Termination Date, 5.807% per annum and (ii) with respect to each Distribution Date which occurs thereafter, 6.307% per annum, in each case subject to a cap equal to the Net WAC Rate Cap for such Distribution Date.

Class M-2 Principal Distribution Amount : With respect to any Distribution Date which occurs (i) prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution Date, the Principal Distribution Amount for that Distribution Date remaining after distribution of the Senior Principal Distribution Amount and the Class M-1 Principal Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in effect for that Distribution Date, the lesser of:

•

the Principal Distribution Amount for that Distribution Date remaining after distribution of the Senior Principal Distribution Amount and the Class M-1 Principal Distribution Amount; and

•

the excess, if any, of (A) the aggregate Certificate Principal Balance of the Class M-2 Certificates immediately prior to that Distribution Date over (B) the positive difference between (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after reduction for Realized Losses incurred during the related Prepayment Period) and (ii) the sum of (x) the aggregate Certificate Principal Balance of the Senior Certificates and the Class M-1 Certificates (after taking into account the payment of the Senior Principal Distribution Amount and the Class M-1 Principal Distribution Amount for such Distribution Date) and (y) the product of (a) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after reduction for Realized Losses incurred during the related Prepayment Period) and (b) the sum of 4.40% and the Required Overcollateralization Percentage.

Class M-3 Certificate : Any Certificate designated as a “Class M-3 Certificate” on the face thereof, in the form of Exhibit A-3 hereto, representing the right to its Percentage Interest of

 

 

distributions provided for the Class M-3 Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

Class M-3 Pass-Through Rate : Shall mean (i) with respect to each Distribution Date which occurs on or prior to the Optional Termination Date, 6.105% per annum and (ii) with respect to each Distribution Date which occurs thereafter, 6.605% per annum, in each case subject to a cap equal to the Net WAC Rate Cap for such Distribution Date.

Class M-3 Principal Distribution Amount : With respect to any Distribution Date which occurs (i) prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution Date, the Principal Distribution Amount for that Distribution Date remaining after distribution of the Senior Principal Distribution Amount, the Class M-1 Principal Distribution Amount and the Class M-2 Principal Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in effect for that Distribution Date, the lesser of:

•

the Principal Distribution Amount for that Distribution Date remaining after distribution of the Senior Principal Distribution Amount, the Class M-1 Principal Distribution Amount and the Class M-2 Principal Distribution Amount; and

•

the excess, if any, of (A) the aggregate Certificate Principal Balance of the Class M-3 Certificates immediately prior to that Distribution Date over (B) the positive difference between (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after reduction for Realized Losses incurred during the related Prepayment Period) and (ii) the sum of (x) the aggregate Certificate Principal Balance of the Senior Certificates, the Class M-1 Certificates and the Class M-2 Certificates (after taking into account the payment of the Senior Principal Distribution Amount, the Class M-1 Principal Distribution Amount and the Class M-2 Principal Distribution Amount for such Distribution Date) and (y) the product of (a) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after reduction for Realized Losses incurred during the related Prepayment Period) and (b) the sum of 1.00% and the Required Overcollateralization Percentage.

Class M-4 Certificate : Any Certificate designated as a “Class M-4 Certificate” on the face thereof, in the form of Exhibit A-3 hereto, representing the right to its Percentage Interest of distributions provided for the Class M-4 Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

Class M-4 Pass-Through Rate : Shall mean (i) with respect to each Distribution Date which occurs on or prior to the Optional Termination Date, 6.216% per annum and (ii) with respect to each Distribution Date which occurs thereafter, 6.716% per annum, in each case subject to a cap equal to the Net WAC Rate Cap for such Distribution Date.

Class M-4 Principal Distribution Amount : With respect to any Distribution Date which occurs (i) prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution Date, the Principal Distribution Amount for that Distribution Date remaining after distribution of the Senior Principal Distribution Amount, the Class M-1 Principal

 

 

Distribution Amount, the Class M-2 Principal Distribution Amount and the Class M-3 Principal Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in effect for that Distribution Date, the lesser of:

•

the Principal Distribution Amount for that Distribution Date remaining after distribution of the Senior Principal Distribution Amount, the Class M-1 Principal Distribution Amount, the Class M-2 Principal Distribution Amount and the Class M-3 Distribution Amount; and

•

the excess, if any, of (A) the aggregate Certificate Principal Balance of the Class M-4 Certificates immediately prior to that Distribution Date over (B) the positive difference between (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after reduction for Realized Losses incurred during the related Prepayment Period) and (ii) the sum of (x) the aggregate Certificate Principal Balance of the Senior Certificates, the Class M-1, Class M-2 and Class M-3 Certificates (after taking into account the payment of the Senior Principal Distribution Amount, the Class M-1 Principal Distribution Amount, the Class M-2 Principal Distribution Amount and the Class M-3 Principal Distribution Date for such Distribution Date) and (y) the product of (a) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after reduction for Realized Losses incurred during the related Prepayment Period) and (b) the Required Overcollateralization Percentage.

Class P Certificate : Any Certificate designated as a “Class P Certificate” on the face thereof, in the form of Exhibit A-5 hereto, representing the right to its Percentage Interest of distributions provided for the Class P Certificates as set forth herein and evidencing a Regular Interest in REMIC III.

Class P Certificate Account : The Eligible Account established and maintained by the Securities Administrator pursuant to Section 5.09.

Class R Certificate : Any Certificate designated a “Class R Certificate” on the face thereof, in substantially the form set forth in Exhibit A-6 hereto, evidencing the Class R-1 Interest, Class R-2 Interest and Class R-3 Interest.

Class R-1 Interest : The uncertificated residual interest in REMIC I.

Class R-2 Interest : The uncertificated residual interest in REMIC II.

Class R-3 Interest : The uncertificated residual interest in REMIC III.

Class X Certificate : Any Certificate designated as a “Class X Certificate” on the face thereof, in the form of Exhibit A-4 hereto, representing the right to its Percentage Interest of distributions provided for the Class X Certificates herein and evidencing a Regular Interest in REMIC III.

 

 

 

Class X Distribution Amount : With respect to any Distribution Date, the sum of (i) the Excess Cap Payment, (ii) the Interest Distribution Amount for the Class X Certificates for such Distribution Date and (iii) any Overcollateralization Reduction Amount for such Distribution Date remaining after payments pursuant to items 1 though 7 of clause Third of Section 5.04; provided, however that on and after the Distribution Date on which the Certificate Principal Balance of the Certificates has been reduced to zero, the Class X Distribution Amount shall include the Overcollateralization Amount.

Class X Pass-Through Rate : On any Distribution Date, 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 (A) through (K) below, and the denominator of which is the aggregate of the Uncertificated Principal Balances of the REMIC II Regular Interests (other than REMIC II Regular Interest LTII-IO and REMIC II Regular Interest LTII-P). For purposes of calculating the Pass-Through Rate for the Class X Certificates, the numerator is equal to the sum of the following components:

(A)       the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-AA minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-AA;

(B)       the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-A1 minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-A1;

(C)       the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-A2 minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-A2;

(D)       the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-A3 minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-A3;

(E)       the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-A4 minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-A4;

(F)       the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-A5 minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-A5;

(G)       the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-M1 minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-M1;

(H)       the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-M2 minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-M2;

 

 

 

(I)        the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-M3 minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-M3;

(J)         the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-M4 minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-M4; and

(K)       the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest LTII-ZZ minus the Marker Rate, applied to an amount equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-ZZ.

Cleanup Call : As defined in Section 11.01.

Closing Date : August 30, 2005.

Code : The Internal Revenue Code of 1986, including any successor or amendatory provisions.

Compensating Interest : With respect to any Distribution Date, an amount to be deposited in the Distribution Account by the related Servicer or the Master Servicer to offset a Prepayment Interest Shortfall on a Mortgage Loan in accordance with this Agreement, the M&T Servicing Agreement, the GreenPoint Servicing Agreement and the Wells Fargo Servicing Agreement, as applicable; provided, however that the amount of Compensating Interest required to be paid in respect of any M&T Mortgage Loan, GreenPoint Mortgage Loan or Wells Fargo Mortgage Loan shall not exceed the Servicing Fee payable to M&T, GreenPoint or Wells Fargo, as applicable, the amount of Compensating Interest required to be paid in respect of any GMACM Mortgage Loans shall not exceed one-half of the Servicing Fee payable to GMACM and the amount of Compensating Interest required to be paid by the Master Servicer shall not exceed the Master Servicing Compensation payable to the Master Servicer with respect to the related Prepayment Period.

Corporate Trust Office : The principal corporate trust office of the Trustee which office at the date of the execution of this instrument is located at 452 Fifth Avenue, New York, New York 10018, Attention: Nomura Asset Acceptance Corp., 2005-AP3 or at such other address as the Trustee may designate from time to time by notice to the Certificateholders, the Depositor, the Master Servicer, the Securities Administrator and the Servicer. The office of the Securities Administrator, which for purposes of Certificate transfers and surrender is located at Wells Fargo Bank, N.A., Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479, Attention: Corporate Trust Services-Client Manager (NAAC 2005-AP3), and for all other purposes is located at Wells Fargo Bank, N.A., P.O. Box 98, Columbia, Maryland 21046, Attention: Corporate Trust Services-Client Manager (NAAC 2005-AP3) (or for overnight deliveries, at 9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: Corporate Trust Services-Client Manager (NAAC 2005-AP3)).

Corresponding Certificate : With respect to:

(i)	REMIC II Regular Interest LTII-A1, the Class A-1 Certificates,

 

 

 

 

 

(ii)	REMIC II Regular Interest LTII-A2, the Class A-2 Certificates;
(iii)	REMIC II Regular Interest LTII-A3, the Class A-3 Certificates;
(iv)	REMIC II Regular Interest LTII-A4, the Class A-4 Certificates;
(v)	REMIC II Regular Interest LTII-A5, the Class A-5 Certificates;
(vi)	REMIC II Regular Interest LTII-M1, the Class M-1 Certificates;
(vii)	REMIC II Regular Interest LTII-M2, the Class M-2 Certificates;
(viii)	REMIC II Regular Interest LTII-M3, the Class M-3 Certificates;
(ix)	REMIC II Regular Interest LTII-M4, the Class M-4 Certificates; and
(x)	REMIC II Regular Interest LTII-P, the Class P Certificates.

 

Credit Enhancement Percentage : With respect to any Distribution Date and any Class of Publicly Offered Certificates, the percentage obtained by dividing (x) the sum of (i) the aggregate Certificate Principal Balance of the Class or Classes of Publicly Offered Certificates subordinate thereto and (ii) the Overcollateralization Amount by (y) the aggregate Stated Principal Balance of the Mortgage Loans, calculated after taking into account distributions of principal on the Mortgage Loans and distribution of the Principal Distribution Amount to the holders of the Certificates then entitled to distributions of principal on such Distribution Date.

Credit Risk Management Agreement : The agreement between the Credit Risk Manager and a Servicer and/or Master Servicer, dated as of August 30, 2005.

Credit Risk Management Fee : As to each Mortgage Loan and any Distribution Date, an amount equal to 1/12th of the Credit Risk Management Fee Rate multiplied by the Stated Principal Balance of such Mortgage Loan as of the last day of the related Due Period. The Credit Risk Management Fee shall be payable to the Credit Risk Manager and/or the Seller pursuant to Section 3.32(a)(vii) and 3.33(b).

Credit Risk Management Fee Rate : 0.0125% per annum.

Credit Risk Manager : The Murrayhill Company, a Colorado corporation.

Custodial Account : The account established and maintained by GMACM with respect to receipts on the GMACM Mortgage Loans and related REO Properties in accordance with Section 3.26(b), by M&T with respect to receipts on the M&T Mortgage Loans and related REO Property in accordance with the M&T Servicing Agreement, by GreenPoint with respect to receipts on the GreenPoint Mortgage Loans and the related REO Property in accordance with the GreenPoint Servicing Agreement or by Wells Fargo with respect to receipts on the Wells Fargo

 

 

Mortgage Loans and related REO Property in accordance with the Wells Fargo Servicing Agreement.

Custodial Agreements : The Custodial Agreement dated as of August 1, 2005 among the JPMorgan Chase Bank, N.A., GMACM, as a servicer, M&T, as a servicer, Wells Fargo, as a servicer, GreenPoint, as a servicer, and the Trustee and the Custodial Agreement dated as of August 1, 2005 among Wells Fargo Bank, N.A., GMACM, as a servicer and the Trustee.

Custodian : Each of JPMorgan Trust Company, N.A., a national banking association and Wells Fargo Bank, N.A., a national banking association, or any successor thereto appointed pursuant to the related Custodial Agreement.

Cut-off Date : August 1, 2005.

Cut-off Date Principal Balance : As to any Mortgage Loan, the unpaid principal balance thereof as of the close of business on the Cut-off Date after application of all Principal Prepayments received prior to the Cut-off Date and scheduled payments of principal due on or before the Cut-off Date, whether or not received, but without giving effect to any installments of principal received in respect of Due Dates after the Cut-off Date.

Debt Service Reduction : With respect to any Mortgage Loan, a reduction by a court of competent jurisdiction in a proceeding under the Bankruptcy Code in the Scheduled Payment for such Mortgage Loan that became final and non-appealable, except such a reduction resulting from a Deficient Valuation or any other reduction that results in a permanent forgiveness of principal.

Deficient Valuation : With respect to any Mortgage Loan, a valuation by a court of competent jurisdiction of the Mortgaged Property in an amount less than the then outstanding indebtedness under such Mortgage Loan, or any reduction in the amount of principal to be paid in connection with any Scheduled Payment that results in a permanent forgiveness of principal, which valuation or reduction results from an order of such court that is final and non-appealable in a proceeding under the Bankruptcy Code.

Definitive Certificates : As defined in Section 6.06.

Deleted Mortgage Loan : A Mortgage Loan replaced or to be replaced by a Replacement Mortgage Loan.

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 corresponding day of the month immediately succeeding the month in which such payment was due, or, if there is no such corresponding day (e.g., as when a 30-day month follows a 31-day month in which a payment was due on the 31st day of such month), then on the last day of such immediately succeeding month. Similarly for “60 days delinquent,” “90 days delinquent” and so on.

 

 

 

Denomination : With respect to each Certificate, the amount set forth on the face thereof as the “Initial Certificate Principal Balance of this Certificate”.

Depositor : Nomura Asset Acceptance Corporation, a Delaware corporation, or its successor in interest.

Depository : The initial Depository shall be The Depository Trust Company (“DTC”), the nominee of which is Cede & Co., or any other organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act. The Depository shall initially be the registered Holder of the Book-Entry Certificates. The Depository shall at all times be a “clearing corporation” as defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York.

Depository Agreement : With respect to the Class of Book-Entry Certificates, the agreement among the Depositor, the Trustee and the initial Depository, dated as of the Closing Date, substantially in the form of Exhibit I.

Depository Participant : A broker, dealer, bank or other financial institution or other Person for whom from time to time a Depository effects book-entry transfers and pledges of securities deposited with the Depository.

Determination Date : With respect to any Distribution Date, the 15th day of the month of such Distribution Date or, if such 15th day is not a Business Day, the immediately preceding Business Day.

Distribution Account : The separate Eligible Account created and maintained by the Securities Administrator pursuant to Section 3.31 for the benefit of the Certificateholders and designated “Wells Fargo Bank, National Association, in trust for registered holders of Nomura Asset Acceptance Corp., Mortgage Pass-Through Certificates, Series 2005-AP3”. Funds in the Distribution Account shall be held in trust for the Certificateholders for the uses and purposes set forth in this Agreement.

Distribution Date : The twenty-fifth (25 ^th ) day of each calendar month after the initial issuance of the Certificates, or if such twenty-fifth (25 ^th ) day is not a Business Day, the next succeeding Business Day, commencing in September 2005.

Due Date : As to any Mortgage Loan, the date in each month on which the related Scheduled Payment is due, as set forth in the related Mortgage Note.

Due Period : For any Distribution Date, (i) with respect to the GMACM Mortgage Loans, GreenPoint Mortgage Loans and Wells Fargo Mortgage Loans, the period from the second day of the calendar month preceding the calendar month in which such Distribution Date occurs through the close of business on the first day of the calendar month in which such Distribution Date occurs and (ii) with respect to the M&T Mortgage Loans, the calendar month preceding the calendar month in which such Distribution Date occurs.

Eligible Account : Any of (i) an account or accounts maintained with a federal or state chartered depository institution or trust company, the long-term unsecured debt obligations and

 

 

short-term unsecured debt obligations of which are rated by each Rating Agency in one of its two highest long-term and its highest short-term rating categories respectively, at the time any amounts are held on deposit therein, or (ii) an account or accounts in a depository institution or trust company in which such accounts are insured by the FDIC (to the limits established by the FDIC) and the uninsured deposits in which accounts are otherwise secured such that, as evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating Agency, the Certificateholders have a claim with respect to the funds in such account or a perfected first priority security interest against any collateral (which shall be limited to Permitted Investments) securing such funds that is superior to claims of any other depositors or creditors of the depository institution or trust company in which such account is maintained, or (iii) a segregated, non-interest bearing trust account or accounts maintained with the corporate trust department of a federal or state chartered depository institution or trust company having capital and surplus of not less than $50,000,000, acting in its fiduciary capacity or (iv) any other account acceptable to the Rating Agencies as evidenced in writing by the Rating Agencies. Eligible Accounts may bear interest, and may include, if otherwise qualified under this definition, accounts maintained with the Trustee or Securities Administrator.

ERISA : The Employee Retirement Income Security Act of 1974, as amended.

ERISA Restricted Certificate : Each of the Class X, Class P and Residual Certificates.

Escrow Account : Shall mean an account maintained by GMACM pursuant to Section 3.29. The Escrow Account shall be an Eligible Account.

Excess Cap Payment : With respect to any Distribution Date, the excess, if any, of (1) the cap payments made by the Cap Provider under the Cap Contract with respect to the Class A-1 Certificates over (2) the amount of the unpaid Net WAC Rate Carryover Amounts attributable to the Class A-1 Certificates for such Distribution Date.

Excess Liquidation Proceeds : To the extent not required by law to be paid to the related Mortgagor, the excess, if any, of any Liquidation Proceeds with respect to a Mortgage Loan over the Stated Principal Balance of such Mortgage Loan and accrued and unpaid interest at the related Mortgage Rate through the last day of the month in which the Mortgage Loan has been liquidated.

Exchange Act : Securities and Exchange Act of 1934, as amended.

Exemption : Prohibited Transaction Exemption 93-32, as amended from time to time.

Extra Principal Distribution Amount : With respect to any Distribution Date, the lesser of (x) the Net Monthly Excess Cashflow for such Distribution Date and (y) the Overcollateralization Increase Amount for such Distribution Date.

Fannie Mae : Fannie Mae (formerly, Federal National Mortgage Association), or any successor thereto.

FDIC : The Federal Deposit Insurance Corporation, or any successor thereto.

 

 

 

Final Recovery Determination : With respect to any defaulted Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property purchased by the Seller, the Depositor or the Master Servicer pursuant to or as contemplated by Section 2.03(c) or Section 10.01), a determination made by GMACM pursuant to this Agreement, M&T pursuant to the M&T Servicing Agreement, GreenPoint pursuant to the GreenPoint Servicing Agreement or Wells Fargo pursuant to the Wells Fargo Servicing Agreement that all Insurance Proceeds, Liquidation Proceeds and other payments or recoveries which GMACM, M&T, GreenPoint or Wells Fargo, as applicable, in its reasonable good faith judgment, expects to be finally recoverable in respect thereof have been so recovered. The related Servicer shall maintain records of each Final Recovery Determination made thereby.

FIRREA : The Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended.

Freddie Mac : Federal Home Loan Mortgage Corporation, or any successor thereto.

GMACM : GMAC Mortgage Corporation or any successor thereto appointed hereunder in connection with the servicing and administration of the GMACM Mortgage Loans.

GMACM’s Assignee : As defined in Section 5.01(b)(ii).

GMACM Mortgage Loans : Shall mean those Mortgage Loans serviced by GMACM pursuant to the terms of this Agreement.

GreenPoint : GreenPoint Mortgage Funding, Inc., or any successor thereto appointed under the GreenPoint Servicing Agreement.

GreenPoint Assignment Agreement : The Assignment, Assumption and Recognition Agreement, dated as of August 30, 2005, by and among and the Seller, GreenPoint and the Depositor evidencing the assignment of the GreenPoint Servicing Agreement to the Depositor.

GreenPoint Mortgage Loans : Those Mortgage Loans subject to this Agreement which were purchased by the Seller and serviced pursuant to the GreenPoint Servicing Agreement.

GreenPoint Servicing Agreement : Shall mean the Master Loan Purchase and Servicing Agreement, dated as of March 1, 2003, by and between the Seller and GreenPoint, as modified by the GreenPoint Assignment Agreement.

Indemnified Persons : The Trustee, the Master Servicer, the Securities Administrator, the Custodians, the Trust Fund and their officers, directors, agents and employees and, with respect to the Trustee, any separate co-trustee and its officers, directors, agents and employees.

Initial Certificate Principal Balance : With respect to any Certificate, the Certificate Principal Balance of such Certificate or any predecessor Certificate on the Closing Date.

Insurance Policy : With respect to any Mortgage Loan included in the Trust Fund, any insurance policy, including all riders and endorsements thereto in effect with respect to such Mortgage Loan, including any replacement policy or policies for any Insurance Policies.

 

 

 

Insurance Proceeds : Proceeds paid in respect of the Mortgage Loans pursuant to any Insurance Policy or any other insurance policy covering a Mortgage Loan, to the extent such proceeds are payable to the mortgagee under the Mortgage, GMACM, M&T, GreenPoint, Wells Fargo or the trustee under the deed of trust and are not applied to the restoration of the related Mortgaged Property or released to the Mortgagor in accordance with the servicing standard set forth in Section 3.01 hereof or pursuant to the M&T Servicing Agreement, the GreenPoint Servicing Agreement or the Wells Faro Servicing Agreement, as applicable, other than any amount included in such Insurance Proceeds in respect of Insured Expenses.

Insured Expenses : Expenses covered by any Insurance Policy with respect to the Mortgage Loans.

Interest Carry Forward Amount : With respect to any Class of Certificates (other than the Class X, Class P and Class R Certificates) and any Distribution Date, the amount, if any, by which the Interest Distribution Amount for that Class of Certificates for the immediately preceding Distribution Date exceeded the actual amount distributed on such Class in respect of interest on the immediately preceding Distribution Date, together with any Interest Carry Forward Amount with respect to such Class remaining unpaid from the previous Distribution Date.

Interest Determination Date : Shall mean the second LIBOR Business Day preceding the commencement of each Accrual Period.

Interest Distribution Amount : With respect to any Class of Certificates (other than the Class P Certificates and Class R Certificates) and any Distribution Date, an amount equal to the interest accrued during the related Accrual Period at the applicable Pass-Through Rate on the Certificate Principal Balance (or Certificate Notional Balance) of such Certificate immediately prior to such Distribution Date less such Certificate’s share of any Net Interest Shortfall and the interest portion of any Realized Losses on the Mortgage Loans allocated to such Certificate pursuant to Section 1.02. The Interest Distribution Amount with respect to each class of Certificates (other than the Class A-1 Certificates) is calculated on the basis of a 360-day year consisting of twelve 30-day months. The Interest Distribution Amount with respect to the Class A-1 Certificates is calculated on the basis of a 360-day year and the actual number of days elapsed in the related Accrual Period. No Interest Distribution Amount will be payable with respect to any Class of Certificates after the Distribution Date on which the outstanding Certificate Principal Balance (or Certificate Notional Balance) of such Certificate has been reduced to zero.

Interest Remittance Amount : With respect to any Distribution Date, that portion of the Available Distribution Amount for such Distribution Date generally equal to (i) the sum, without duplication, of (a) all scheduled interest during the related Due Period with respect to the Mortgage Loans less the Servicing Fee, the Credit Risk Management Fee and the fee payable to any provider of lender-paid mortgage insurance, if any, (b) all Advances relating to interest with respect to the Mortgage Loans made on or prior to the related Remittance Date, (c) all Compensating Interest with respect to the Mortgage Loans and required to be remitted by the Servicers or the Master Servicer pursuant to this Agreement, the M&T Servicing Agreement, the GreenPoint Servicing Agreement and the Wells Fargo Servicing Agreement with respect to such

 

 

Distribution Date, (d) Liquidation Proceeds and Subsequent Recoveries with respect to the Mortgage Loans collected during the related Prepayment Period (to the extent such Liquidation Proceeds and Subsequent Recoveries relate to interest), (e) all amounts relating to interest with respect to each Mortgage Loan repurchased by the Seller pursuant to Sections 2.02 and 2.03 and (f) all amounts in respect of interest paid by the Master Servicer pursuant to Section 10.01 to the extent remitted by the Master Servicer to the Distribution Account pursuant to this Agreement or minus (ii) all amounts required to be reimbursed by the Trust pursuant to Section 3.32 or as otherwise set forth in this Agreement or any Custodial Agreement.

Interest Shortfall : With respect to any Distribution Date, the aggregate shortfall, if any, in collections of interest (adjusted to the related Net Mortgage Rates) on Mortgage Loans resulting from (a) Principal Prepayments in full received during the related Prepayment Period, (b) partial Principal Prepayments received during the related Prepayment Period to the extent applied prior to the Due Date in the month of the Distribution Date and (c) interest payments on certain of the Mortgage Loans being limited pursuant to the provisions of the Relief Act.

Last Scheduled Distribution Date : With respect to the Certificates (other than the Class A-IO Certificates), the Distribution Date in August 2035 and with respect to the Class A-IO Certificates, the Distribution Date in August 2007.

Latest Possible Maturity Date : The Distribution Date following the final scheduled maturity date of the Mortgage Loan in the Trust Fund having the latest scheduled maturity date as of the Cut-off Date. For purposes of the Treasury Regulations under Code section 860A through 860G, the latest possible maturity date of each regular interest issued by REMIC I, REMIC II and REMIC III shall be the Latest Possible Maturity Date.

LIBOR Business Day : Shall mean any day other than a Saturday or a Sunday or a day on which banking institutions in the State of New York or in the city of London, England are required or authorized by law to be closed.

Liquidated Loan : With respect to any Distribution Date, a defaulted Mortgage Loan that has been liquidated through deed-in-lieu of foreclosure, foreclosure sale, trustee’s sale or other realization as provided by applicable law governing the real property subject to the related Mortgage and any security agreements and as to which the related Servicer has certified in the related Prepayment Period in writing to the Securities Administrator that it has made a Final Recovery Determination.

Liquidation Proceeds : Amounts, other than Insurance Proceeds, received in connection with the partial or complete liquidation of a Mortgage Loan, whether through trustee’s sale, foreclosure sale or otherwise, or in connection with any condemnation or partial release of a Mortgaged Property and any other proceeds received with respect to an REO Property, less the sum of related unreimbursed Advances, Servicing Fees, Master Servicing Fees and Servicing Advances and all expenses of liquidation, including property protection expenses and foreclosure and sale costs, including court and reasonable attorneys fees.

 

 

 

Loan-to-Value Ratio : The fraction, expressed as a percentage, the numerator of which is the original principal balance of the Mortgage Loan and the denominator of which is the Appraised Value of the related Mortgaged Property.

M&T : M&T Mortgage Corporation, or any successor thereto appointed under the M&T Servicing Agreement.

M&T Assignment Agreement : The Assignment, Assumption and Recognition Agreement, dated as of August 30, 2005, by and among and the Seller, M&T and the Depositor evidencing the assignment of the M&T Servicing Agreement to the Depositor.

M&T Mortgage Loans : Those Mortgage Loans subject to this Agreement which were purchased by the Seller from First National Bank of Nevada and serviced pursuant to the M&T Servicing Agreement.

M&T Servicing Agreement : Shall mean the Servicing Agreement, dated as of October 1, 2004, by and between the Seller and M&T, as modified by the M&T Assignment Agreement.

Majority Class X Certificateholder : The Holder of a 50.01% or greater Percentage Interest in the Class X Certificates.

Marker Rate : With respect to the Class X Certificates and any Distribution Date, a per annum rate equal to two (2) times the weighted average of the Uncertificated REMIC II Pass-Through Rates for REMIC II Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5, REMIC II Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3, REMIC II Regular Interest LTII-M4 and REMIC II Regular Interest LTII-ZZ, with the rate on REMIC II Regular Interest LTII-A1 subject to a cap equal to the lesser of (x) One-Month LIBOR plus 0.13% per annum and (y) the Net WAC Rate Cap for the purpose of this calculation; with the rate on REMIC II Regular Interest LTII-A2 subject to a cap equal to the lesser of (x) 5.123% per annum and (y) the Net WAC Rate Cap for the purpose of this calculation; with the rate on REMIC II Regular Interest LTII-A3 subject to a cap equal to the lesser of (x) 5.318% per annum and (y) the Net WAC Rate Cap for the purpose of this calculation; with the rate on REMIC II Regular Interest LTII-A4 subject to a cap equal to the lesser of (A) in the case of any Distribution Date up to and including the Optional Termination Date, the lesser of (x) 5.607% per annum and (y) the Net WAC Rate Cap and (B) in the case of any Distribution Date after the Optional Termination Date, the lesser of (x) 6.107% per annum and (y) the Net WAC Rate Cap for the purpose of this calculation; with the rate on REMIC II Regular Interest LTII-A5 subject to a cap equal to the lesser of (A) in the case of any Distribution Date up to and including the Optional Termination Date, the lesser of (x) 5.190% per annum and (y) the Net WAC Rate Cap and (B) in the case of any Distribution Date after the Optional Termination Date, the lesser of (x) 5.690% per annum and (y) the Net WAC Rate Cap for the purpose of this calculation; with the rate on REMIC II Regular Interest LTII-M1 subject to a cap equal to (A) in the case of any Distribution Date up to and including the Optional Termination Date, the lesser of (x) 5.672% per annum and (y) the Net WAC Rate Cap and (B) in the case of any Distribution Date after the Optional Termination Date, the lesser of (x) 6.172% per annum and (y) the Net WAC Rate Cap for the purpose of this calculation; with the rate on

 

 

REMIC II Regular Interest LTII-M2 subject to a cap equal to (A) in the case of any Distribution Date up to and including the Optional Termination Date, the lesser of (x) 5.807% per annum and (y) the Net WAC Rate Cap and (B) in the case of any Distribution Date after the Optional Termination Date, the lesser of (x) 6.307% per annum and (y) the Net WAC Rate Cap for the purpose of this calculation; with the rate on REMIC II Regular Interest LTII-M3 subject to a cap equal to (A) in the case of any Distribution Date up to and including the Optional Termination Date, the lesser of (x) 6.105% per annum and (y) the Net WAC Rate Cap and (B) in the case of any Distribution Date after the Optional Termination Date, the lesser of (x) 6.605% per annum and (y) the Net WAC Rate Cap for the purpose of this calculation; with the rate on REMIC II Regular Interest LTII-M4 subject to a cap equal to (A) in the case of any Distribution Date up to and including the Optional Termination Date, the lesser of (x) 6.216% per annum and (y) the Net WAC Rate Cap and (B) in the case of any Distribution Date after the Optional Termination Date, the lesser of (x) 6.716% per annum and (y) the Net WAC Rate Cap for the purpose of this calculation and with the rate on REMIC II Regular Interest LTII-ZZ subject to a cap of zero for the purpose of this calculation; provided, however, that for this purpose, the calculation of the Uncertificated REMIC II Pass-Through Rate and the related cap with respect to REMIC II Regular Interest LTII-A1 shall be multiplied by a fraction, the numerator of which is the actual number of days in the Accrual Period and the denominator of which is 30.

Master Servicer : As of the Closing Date, Wells Fargo Bank, N.A. and thereafter, its respective successors in interest who meet the qualifications of this Agreement. The Master Servicer and the Securities Administrator shall at all times be the same Person or Affiliates.

Master Servicer Certification : A written certification signed by an officer of the Master Servicer that complies with (i) the Sarbanes-Oxley Act of 2002, as amended from time to time, and (ii) the February 21, 2003 Statement by the Staff of the Division of Corporation Finance of the Securities and Exchange Commission Regarding Compliance by Asset-Backed Issuers with Exchange Act Rules 13a-14 and 15d-14, as in effect from time to time; provided that if, after the Closing Date (a) the Sarbanes-Oxley Act of 2002 is amended, (b) the Statement referred to in clause (ii) is modified or superseded by any subsequent statement, rule or regulation of the Securities and Exchange Commission or any statement of a division thereof, or (c) any future releases, rules and regulations are published by the Securities and Exchange Commission from time to time pursuant to the Sarbanes-Oxley Act of 2002, which in any such case affects the form or substance of the required certification and results in the required certification being, in the reasonable judgment of the Master Servicer, materially more onerous than the form of the required certification as of the Closing Date, the Master Servicer Certification shall be as agreed to by the Master Servicer, the Depositor and the Seller following a negotiation in good faith to determine how to comply with any such new requirements.

Master Servicer Default : One or more of the events described in Section 8.01(b).

Master Servicer Fee Rate : 0.01% per annum.

Master Servicing Compensation : As defined in Section 4.12.

Master Servicing Fee : With respect to each Mortgage Loan and for any calendar month, an amount equal to one twelfth of the product of the Master Servicer Fee Rate multiplied by the

 

 

Stated Principal Balance of the Mortgage Loans as of the Due Date in the preceding calendar month.

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 Mortgages electronically maintained by MERS.

Mezzanine Certificates : Shall mean, collectively, the Class M-1, Class M-2, Class M-3 and Class M-4 Certificates.

MIN : The Mortgage Identification Number for Mortgage Loans registered with MERS on the MERS® System.

MOM Loan : Any Mortgage Loan as to which MERS is 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 Statement : The statement delivered to the Certificateholders pursuant to Section 5.06.

Moody’s : Moody’s Investors Service, Inc. or its successor in interest.

Mortgage : The mortgage, deed of trust or other instrument creating a first lien on or first priority ownership interest in an estate in fee simple in real property securing a Mortgage Note.

Mortgage File : The Mortgage Loan Documents pertaining to a particular Mortgage Loan and any additional documents delivered to the Trustee to be added to the Mortgage File pursuant to this Agreement.

Mortgage Loan Documents : As defined in Section 2.01.

Mortgage Loans : Such of the Mortgage Loans transferred and assigned to the Trustee pursuant to the provisions hereof, as from time to time are held as a part of the Trust Fund (including any REO Property), the mortgage loans so held being identified in the Mortgage Loan Schedule, notwithstanding foreclosure or other acquisition of title of the related Mortgaged Property.

Mortgage Loan Purchase Agreement : The Mortgage Loan Purchase Agreement dated as of August 30, 2005, between the Seller, as seller and the Depositor, as purchaser.

Mortgage Loan Purchase Price : The price, calculated as set forth in Section 10.01, to be paid in connection with the purchase of the Mortgage Loans pursuant to Section 10.01.

Mortgage Loan Schedule : The list of Mortgage Loans (as from time to time amended by the related Servicer to reflect the deletion of Deleted Mortgage Loans and the addition of Replacement Mortgage Loans pursuant to the provisions of this Agreement transferred to the

 

 

Trustee as part of the Trust Fund and from time to time subject to this Agreement, the initial Mortgage Loan Schedule being attached hereto as Exhibit B-1, setting forth the following information with respect to each Mortgage Loan:

(i)	the loan number;
(ii)	the Mortgage Rate in effect as of the Cut-off Date;
(iii)	the Servicing Fee Rate;
(iv)	the Net Mortgage Rate in effect as of the Cut-off Date;
(v)	the maturity date;
(vi)	the original principal balance;
(vii)	the Cut-off Date Principal Balance;
(viii)	the original term;
(ix)	the remaining term;
(x)	the property type;
(xi)	with respect to each MOM Loan, the related MIN;
(xii)	the Custodian;
(xiii)	a code indicating whether the Mortgage Loan is subject to a Prepayment Charge, the term of such Prepayment Charge and the amount of such Prepayment Charge; and
(xiv)	the Servicer.

 

Such schedule shall also set forth the aggregate Cut-off Date Principal Balance for all of the Mortgage Loans.

Mortgage Note : The original executed note or other evidence of indebtedness of a Mortgagor under a Mortgage Loan.

Mortgage Rate : The annual rate of interest borne by a Mortgage Note.

Mortgaged Property : The underlying property securing a Mortgage Loan.

Mortgagor : The obligor on a Mortgage Note.

 

 

 

Net Interest Shortfalls : Shall mean Interest Shortfalls net of payments by the related Servicer or the Master Servicer in respect of Compensating Interest.

Net Monthly Excess Cashflow : With respect to any Distribution Date, the sum of (a) any Overcollateralization Reduction Amount and (b) the excess of (x) the Available Distribution Amount for such Distribution Date over (y) the sum for such Distribution Date of (A) the aggregate amount of Senior Interest Distribution Amounts payable to the Senior Certificates and the Interest Distribution Amounts payable to the Mezzanine Certificates and (B) the Principal Remittance Amount.

Net Mortgage Rate : As to each Mortgage Loan, and at any time, the per annum rate equal to the related Mortgage Rate less the sum of (i) the Servicing Fee Rate, (ii) the Credit Risk Management Fee Rate, the Master Servicer Fee Rate and (iii) the rate at which the fee payable to any provider of lender-paid mortgage insurance is calculated, if applicable.

Net WAC Rate Cap : With respect to the Senior Certificates (other than the Class A-IO Certificates) and the Mezzanine Certificates, (i) from and including the Distribution Date in September 2005 through and including the Distribution Date in August 2007, (a) the weighted average of the Net Mortgage Rates of the Mortgage Loans, weighted based on their Stated Principal Balances as of the first day of the calendar month preceding the month in which the Distribution Date occurs minus 3.50% per annum times (b) a fraction, the numerator of which is the Certificate Notional Balance of the Class A-IO Certificates and the denominator of which is the aggregate Stated Principal Balance of the Mortgage Loans as of the first day of the calendar month preceding the month in which the Distribution Date occurs, and (ii) thereafter, the weighted average of the Net Mortgage Rates of the Mortgage Loans, weighted based on their Stated Principal Balances as of the first day of the calendar month preceding the month in which the Distribution Date occurs; provided that the Net WAC Rate Cap with respect to the Class A-1 Certificates shall be multiplied by a fraction, the numerator of which is 30 and the denominator of which is the actual number of days in the Accrual Period.

For federal income tax purposes, the Net WAC Rate Cap, with respect to any Distribution Date, shall be expressed as the weighted average of the Uncertificated REMIC II Pass-Through Rates on each REMIC II Regular Interest (other than REMIC II Regular Interest LTII-IO) weighted on the basis of the Uncertificated Principal Balance of the REMIC II Regular Interests and, with respect to the Insured Certificates, minus the Insurer Premium Rate.

Net WAC Rate Carryover Amount : With respect to each class of Senior Certificates (other than the Class A-IO Certificates) and the Mezzanine Certificates and any Distribution Date on which the related Pass-Through Rate is reduced by the Net WAC Rate Cap, an amount equal to the sum of (i) the excess of (x) the amount of interest such Class would have been entitled to receive on such Distribution Date if the Pass-Through Rate applicable to such Class would not have been reduced by the Net WAC Rate Cap on such Distribution Date over (y) the amount of interest paid on such Distribution Date to such class plus (ii) the related Net WAC Rate Carryover Amount for the previous Distribution Date not previously distributed to such class.

 

 

 

Net WAC Reserve Fund : Shall mean the segregated non-interest bearing trust account created and maintained by the Securities Administrator pursuant to Section 5.10 hereof.

Non-Book-Entry Certificate : Any Certificate other than a Book-Entry Certificate.

Nonrecoverable Advance : Any portion of an Advance or Servicing Advance previously made or proposed to be made by the related Servicer pursuant to this Agreement, the M&T Servicing Agreement, the GreenPoint Servicing Agreement or the Wells Fargo Servicing Agreement, as applicable, or the Master Servicer as Successor Servicer, that, in the good faith judgment of GMACM, M&T, GreenPoint, Wells Fargo or the Master Servicer as Successor Servicer, will not or, in the case of a proposed Advance or Servicing Advance, would not, be ultimately recoverable by it from the related Mortgagor, related Liquidation Proceeds, Insurance Proceeds or otherwise.

Officer’s Certificate : A certificate (i) signed by the Chairman of the Board, the Vice Chairman of the Board, the President, a Vice President (however denominated), an Assistant Vice President, the Treasurer, the Secretary, or one of the assistant treasurers or assistant secretaries of the Depositor or the Trustee (or any other officer customarily performing functions similar to those performed by any of the above designated officers and also to whom, with respect to a particular matter, such matter is referred because of such officer’s knowledge of and familiarity with a particular subject) or (ii), if provided for in this Agreement, signed by a Authorized Servicer Representative, as the case may be, and delivered to the Depositor, the Seller, the Master Servicer, the Securities Administrator and/or the Trustee, as the case may be, as required by this Agreement.

One-Month LIBOR : With respect to any Accrual Period (other than the first Accrual Period), the rate determined by the Securities Administrator on the related Interest 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 Interest Determination 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 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 Accrual Period. The establishment of One-Month LIBOR on each Interest Determination Date by the Securities Administrator and the Securities Administrator’s calculation of the rate of interest applicable to the Class A-1 Certificates for the related Accrual Period shall, in the absence of manifest error, be final and binding. With respect to the first Accrual Period, One-Month LIBOR shall equal 3.67000% per annum.

Opinion of Counsel : A written opinion of counsel, who may be counsel for the Seller, the Master Servicer, the Depositor or the related Servicer, reasonably acceptable to each addressee of such opinion; provided that with respect to Section 2.05, 7.05 or 11.01, or the interpretation or application of the REMIC Provisions, such counsel must (i) in fact be independent of the Seller, the Master Servicer, the Depositor and the Servicers, (ii) not have any direct financial interest in the Seller, the Depositor, the Master Servicer or the related Servicer or in any affiliate of any of

 

 

them, and (iii) not be connected with the Seller, the Depositor or the Master Servicer as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.

Optional Termination : The termination of the Trust Fund created hereunder as a result of the purchase of all of the Mortgage Loans and any related REO Property pursuant to Section 10.01.

Optional Termination Date : The first Distribution Date on which the Master Servicer may purchase, at its option, the Mortgage Loans and related REO Properties as described in Section 10.01.

OTS : The Office of Thrift Supervision or any successor thereto.

Outstanding : With respect to the Certificates as of any date of determination, all Certificates theretofore executed and authenticated under this Agreement except:

(a)        Certificates theretofore canceled by the Securities Administrator or delivered to the Securities Administrator for cancellation; and

(b)        Certificates in exchange for which or in lieu of which other Certificates have been executed and delivered by the Securities Administrator pursuant to this Agreement.

Outstanding Mortgage Loan : As of any date of determination, a Mortgage Loan with a Stated Principal Balance greater than zero that was not the subject of a Principal Prepayment in full, and that did not become a Liquidated Loan, prior to the end of the related Prepayment Period.

Overcollateralization Amount : With respect to any Distribution Date, the excess, if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period over (b) the aggregate Certificate Principal Balance of the Senior Certificates (other than the Class A-IO Certificates) and the Mezzanine Certificates on such Distribution Date (after taking into account the payment of 100% of the Principal Remittance Amount on such Distribution Date).

Overcollateralization Increase Amount : With respect to any Distribution Date, the excess, if any, of (a) the Required Overcollateralization Amount over (b) the Overcollateralization Amount on such Distribution Date.

Overcollateralization Reduction Amount : With respect to any Distribution Date, the lesser of (x) the Principal Remittance Amount for such Distribution Date and (y) the excess, if any, of (i) the Overcollateralization Amount for such Distribution Date over (ii) the Required Overcollateralization Amount for such Distribution Date.

Ownership Interest : As to any Certificate, any ownership interest in such Certificate including any interest in such Certificate as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial.

 

 

 

Pass-Through Rate : With respect to each Class of Certificates, the applicable Pass-Through Rate for each Class as set forth in the Preliminary Statement.

Percentage Interest : With respect to any Certificate of a specified Class, the Percentage Interest set forth on the face thereof or the percentage obtained by dividing the Denomination of such Certificate by the aggregate of the Denominations of all Certificates of such Class.

Permitted Investments : At any time, any one or more of the following obligations and securities:

(i)         direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or any agency thereof, provided such obligations are unconditionally backed by the full faith and credit of the United States;

(ii)         general obligations of or obligations guaranteed by any state of the United States or the District of Columbia receiving the highest long-term debt rating of each Rating Agency, or such lower rating as will not result in the downgrading or withdrawal of the ratings then assigned to the Certificates by each Rating Agency, as evidenced by a signed writing delivered by each Rating Agency;

(iii)

[Reserved];

(iv)        commercial or finance company paper which is then receiving the highest commercial or finance company paper rating of each Rating Agency, or such lower rating as will not result in the downgrading or withdrawal of the ratings then assigned to the Certificates by each Rating Agency, as evidenced by a signed writing delivered by each Rating Agency;

(v)        certificates of deposit, demand or time deposits, or bankers’ acceptances issued by any depository institution or trust company incorporated under the laws of the United States or of any state thereof and subject to supervision and examination by federal and/or state banking authorities (including the Trustee or the Master Servicer in its commercial banking capacity), provided that the commercial paper and/or long term unsecured debt obligations of such depository institution or trust company are then rated one of the two highest long-term and the highest short-term ratings of each such Rating Agency for such securities, or such lower ratings as will not result in the downgrading or withdrawal of the rating then assigned to the Certificates by any Rating Agency, as evidenced by a signed writing delivered by each Rating Agency;

(vi)        demand or time deposits or certificates of deposit issued by any bank or trust company or savings institution to the extent that such deposits are fully insured by the FDIC;

(vii)       guaranteed reinvestment agreements issued by any bank, insurance company or other corporation containing, at the time of the issuance of such agreements, such terms and conditions as will not result in the downgrading or withdrawal of the rating then assigned to the Certificates by any such Rating Agency, as evidenced by a signed writing delivered by each Rating Agency;

 

 

 

(viii)      repurchase obligations with respect to any security described in clauses (i) and (ii) above, in either case entered into with a depository institution or trust company (acting as principal) described in clause (v) above;

(ix)        securities (other than stripped bonds, stripped coupons or instruments sold at a purchase price in excess of 115% of the face amount thereof) bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States or any state thereof which, at the time of such investment, have one of the two highest long term ratings of each Rating Agency, or such lower rating as will not result in the downgrading or withdrawal of the rating then assigned to the Certificates by any Rating Agency, as evidenced by a signed writing delivered by each Rating Agency;

(x)        units of money market funds registered under the Investment Company Act of 1940 including funds managed or advised by the Trustee, the Master Servicer or an affiliate of either, having a rating by S&P of AAAm-G, AAA-m, or AA-m, and if rated by Moody’s, rated Aaa, Aa1 or Aa2;

(xi)        short term investment funds sponsored by any trust company or banking association incorporated under the laws of the United States or any state thereof (including any such fund managed or advised by the Trustee, the Master Servicer or any affiliate thereof) which on the date of acquisition has been rated by each Rating Agency in their respective highest applicable rating category 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 by a signed writing delivered by each Rating Agency; and

(xii)       such other investments having a specified stated maturity and bearing interest or sold at a discount acceptable to each Rating Agency as will not result in the downgrading or withdrawal of the rating then assigned to the Certificates by any Rating Agency, as evidenced by a signed writing delivered by each Rating Agency, as evidenced by a signed writing delivered by each Rating Agency;

provided, however, that no instrument described hereunder shall evidence either the right to receive (a) only interest with respect to the obligations underlying such instrument or (b) both principal and interest payments derived from obligations underlying such instrument and the interest and principal payments with respect to such instrument provide a yield to maturity at par greater than 120% of the yield to maturity at par of the underlying obligations.

Permitted Transferee : Any person other than (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, (ii) a foreign government, International Organization or any agency or instrumentality of either of the foregoing, (iii) an organization (except certain farmers’ cooperatives described in Section 521 of the Code) that is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on unrelated business taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to any Residual Certificate, (iv) rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a citizen or resident of the United

 

 

States, a corporation, partnership (other than a partnership that has any direct or indirect foreign partners) or other entity (treated as a corporation or a partnership for federal income tax purposes), created or organized in or under the laws of the United States, any state thereof or the District of Columbia, an estate whose income from sources without the United States is includible 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, 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 United States persons have authority to control all substantial decisions of the trustor and (vi) any other Person based upon an Opinion of Counsel (which shall not be an expense of the Trustee) that states that the Transfer of an Ownership Interest in a Residual Certificate to such Person may cause any REMIC to fail to qualify as a REMIC at any time that any Certificates are Outstanding. The terms “United States,” “State” and “International Organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions. A corporation will not be treated as an instrumentality of the United States or of any State or political subdivision thereof for these purposes if all of its activities are subject to tax and, with the exception of Freddie Mac, a majority of its board of directors is not selected by such government unit.

Person : Any individual, corporation, partnership, joint venture, association, joint–stock company, limited liability company, trust, unincorporated organization or government, or any agency or political subdivision thereof.

Prepayment Assumption : The assumed rate of prepayment, as described in the Prospectus Supplement relating to each Class of Publicly Offered Certificates.

Prepayment Charge : With respect to any Principal Prepayment, any prepayment premium, penalty or charge payable by a Mortgagor in connection with any Principal Prepayment on a Mortgage Loan pursuant to the terms of the related Mortgage Note (other than any Servicer Prepayment Charge Payment Amount) as shown on the Prepayment Charge Schedule.

Prepayment Charge Schedule : As of any date, the list of Mortgage Loans providing for a Prepayment Charge included in the Trust Fund on such date, attached hereto as Exhibit K (including the prepayment charge summary attached thereto). The Depositor shall deliver or cause the delivery of the Prepayment Charge Schedule to each Servicer, the Master Servicer and the Trustee on the Closing Date. The Prepayment Charge Schedule shall set forth the following information with respect to each Prepayment Charge:

(i)	the Mortgage Loan identifying number;
(ii)	a code indicating the type of Prepayment Charge;
(iii)	the date on which the first Monthly Payment was due on the related Mortgage Loan;
(iv)	the term of the related Prepayment Charge;

 

 

 

 

 

(v)	the original Stated Principal Balance of the related Mortgage Loan; and
(vi)	the Stated Principal Balance of the related Mortgage Loan as of the Cut-off Date.

 

Prepayment Interest Shortfall : With respect to any Distribution Date, for each Mortgage Loan that was the subject of a Principal Prepayment in full during the related Prepayment Period, (other than a Principal Prepayment in full resulting from the purchase of a Mortgage Loan pursuant to Section 2.02, 2.03, 3.24 or 10.01 hereof), the amount, if any, by which (i) one month’s interest at the applicable Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan immediately prior to such prepayment exceeds (ii) the amount of interest paid or collected in connection with such Principal Prepayment less the sum of (a) the related Servicing Fee, (b) the related Master Servicing Fee, (c) the Credit Risk Management Fee and (d) the fee payable to any provider of lender-paid mortgage insurance, if any.

Prepayment Period : With respect to any Distribution Date, (i) with respect to GMACM Mortgage Loans, GreenPoint Mortgage Loans and Wells Fargo Mortgage Loans, the calendar month immediately preceding the month in which such Distribution Date occurs and (ii) with respect to the M&T Mortgage Loans, the period beginning on the sixteenth day of the month preceding the month of the related Distribution Date and ending on the fifteenth day of the month of such Distribution Date with respect to Principal Prepayments in full, and the calendar month preceding the month in which the related Distribution Date occurs with respect to Principal Prepayments in part.

Principal Distribution Amount : With respect to each Distribution Date, the sum of (i) Principal Funds, plus (ii) the Extra Principal Distribution Amount for such Distribution Date minus (iii) the amount of any Overcollateralization Reduction Amount for such Distribution Date. In no event will the Principal Distribution Amount with respect to any Distribution Date be (x) less than zero or (y) greater than the then outstanding aggregate Certificate Principal Balance of the Publicly Offered Certificates.

Principal Funds : With respect to any Distribution Date, (i) the sum, without duplication, of (a) all scheduled principal collected during the related Due Period, (b) all Advances relating to principal made on or prior to the Remittance Date or, with respect to the Trustee on the Distribution Date, (c) Principal Prepayments exclusive of prepayment charges or penalties collected during the related Prepayment Period, (iii) the Stated Principal Balance of each Mortgage Loan that was repurchased by the Seller pursuant to Sections 2.02, 2.03 and 3.24, (d) the aggregate of all Substitution Adjustment Amounts for the related Determination Date in connection with the substitution of Mortgage Loans pursuant to Section 2.03(b), (e) amounts in respect of principal paid by the Master Servicer pursuant to Section 10.01, (f) all Liquidation Proceeds and Subsequent Recoveries collected during the related Prepayment Period (to the extent such Liquidation Proceeds and Subsequent Recoveries relate to principal), in each case to the extent remitted by the related Servicer to the Distribution Account pursuant to this Agreement, the M&T Servicing Agreement, the GreenPoint Servicing Agreement or the Wells Fargo Servicing Agreement, as applicable, and (g) all Subsequent Recoveries minus (ii) all amounts required to be reimbursed by the Trust pursuant to Section 3.32 or as otherwise set forth

 

 

in this Agreement or any Custodial Agreement to the extent not reimbursed from the Interest Remittance Amount.

Principal Prepayment : Any Mortgagor payment or other recovery of (or proceeds with respect to) principal on a Mortgage Loan (including loans purchased or repurchased under Sections 2.02, 2.03, 3.26 and 10.01 hereof) that is received in advance of its scheduled Due Date and is not accompanied by an amount as to interest representing scheduled interest due on any Due Date in any month or months subsequent to the month of prepayment. Partial Principal Prepayments shall be applied by the related Servicer in accordance with the terms of the related Mortgage Note.

Principal Remittance Amount : With respect to any Distribution Date, the sum of the Principal Funds for such Distribution Date.

Private Certificate : Each of the Class X, Class P and Class R Certificates.

Prospectus Supplement : The Prospectus Supplement dated August 26, 2005 relating to the offering of the Publicly Offered Certificates.

Publicly Offered Certificates : The Senior Certificates and the Mezzanine Certificates.

PUD : A planned unit development.

Purchase Price : With respect to any Mortgage Loan required to be repurchased by the Seller pursuant to Section 2.02 or 2.03 hereof and as confirmed by an Officer’s Certificate from the Seller to the Trustee, an amount equal to the sum of (i) 100% of the outstanding principal balance of the Mortgage Loan as of the date of such purchase plus (ii) 30 days’ accrued interest thereon at the applicable Net Mortgage Rate, plus any portion of the Servicing Fee, Master Servicing Fee Servicing Advances and Advances payable to the related Servicer or Master Servicer, as applicable, with respect to such Mortgage Loan plus (iii) any costs and damages of the Trust Fund in connection with any violation by such Mortgage Loan of any abusive or predatory lending law, including any expenses incurred by the Trustee with respect to such Mortgage Loan prior to the purchase thereof.

Rating Agency : Each of S&P and Moody’s. If any such organization or its successor is no longer in existence, “Rating Agency” shall be a nationally recognized statistical rating organization, or other comparable Person, designated by the Depositor, notice of which designation shall be given to the Trustee. References herein to a given rating category of a Rating Agency shall mean such rating category without giving effect to any modifiers.

Realized Loss : With respect to each Mortgage Loan as to which a Final Recovery Determination has been made, an amount (not less than zero) equal to (i) the Stated Principal Balance of such Mortgage Loan as of the commencement of the calendar month in which the Final Recovery Determination was made, plus (ii) accrued interest from the Due Date as to which interest was last paid by the Mortgagor through the end of the calendar month in which such Final Recovery Determination was made, calculated in the case of each calendar month during such period (A) at an annual rate equal to the annual rate at which interest was then accruing on such Mortgage Loan and (B) on a principal amount equal to the Stated Principal

 

 

Balance of such Mortgage Loan as of the close of business on the Distribution Date during such calendar month, minus (iii) the proceeds, if any, received in respect of such Mortgage Loan during the calendar month in which such Final Recovery Determination was made, net of amounts that are payable therefrom to the related Servicer pursuant to this Agreement, the M&T Servicing Agreement, the GreenPoint Servicing Agreement or the Wells Fargo Servicing Agreement, as applicable.

With respect to any REO Property as to which a Final Recovery Determination has been made, an amount (not less than zero) equal to (i) the Stated Principal Balance of the related Mortgage Loan as of the date of acquisition of such REO Property on behalf of REMIC I, plus (ii) accrued interest from the Due Date as to which interest was last paid by the Mortgagor in respect of the related Mortgage Loan through the end of the calendar month immediately preceding the calendar month in which such REO Property was acquired, calculated in the case of each calendar month during such period (A) at an annual rate equal to the annual rate at which interest was then accruing on the related Mortgage Loan and (B) on a principal amount equal to the Stated Principal Balance of the related Mortgage Loan as of the close of business on the Distribution Date during such calendar month, minus (iii) the aggregate of all unreimbursed Advances and Servicing Advances.

With respect to each Mortgage Loan which has become the subject of a Deficient Valuation, the difference between the principal balance of the Mortgage Loan outstanding immediately prior to such Deficient Valuation and the principal balance of the Mortgage Loan as reduced by the Deficient Valuation.

With respect to each Mortgage Loan which has become the subject of a Debt Service Reduction, the portion, if any, of the reduction in each affected Monthly Payment attributable to a reduction in the Mortgage Rate imposed by a court of competent jurisdiction. Each such Realized Loss shall be deemed to have been incurred on the Due Date for each affected Monthly Payment.

In addition, to the extent a Servicer receives Subsequent Recoveries with respect to any Mortgage Loan, the amount of the Realized Loss with respect to that Mortgage Loan will be reduced to the extent such Subsequent Recoveries are applied to reduce the Certificate Principal Balance of any Class of Certificates on any Distribution Date.

Record Date : With respect to the Certificates (other than the Class A-1 Certificates) and any Distribution Date, the close of business on the last Business Day of the month preceding the month in which such Distribution Date occurs. With respect to the Class A-1 Certificates and any Distribution Date, so long as the Class A-1 Certificates are Book-Entry Certificates, the Business Day preceding such Distribution Date, and otherwise, the close of business on the last Business Day of the month preceding the month in which such Distribution Date occurs.

Reference Bank Rate : With respect to any Accrual Period shall mean 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 an amount approximately equal to the

 

 

aggregate Certificate Principal Balance of the Class A-1 Certificates for such 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 United States dollars to leading European banks for a period of one month in amounts approximately equal to the aggregate Certificate Principal Balance of the Class A-1 Certificates for such Accrual Period.

Reference Banks : Shall mean leading banks selected by the Securities Administrator and engaged in transactions in Eurodollar deposits in the international Eurocurrency market (i) with an established place of business in London, (ii) which have been designated as such by the Securities Administrator and (iii) which are not controlling, controlled by, or under common control with, the Depositor, the Seller or any Servicer.

Regular Certificate : Any Certificate other than a Residual Certificate.

Relief Act : The Servicemembers Civil Relief Act of 2003, as amended from time to time or similar state or local laws.

REMIC : A “real estate mortgage investment conduit” within the meaning of Section 860D of the Code.

REMIC I : The segregated pool of assets subject hereto, constituting the primary trust created hereby and to be administered hereunder, with respect to which a REMIC election is to be made, consisting of (i) the Mortgage Loans and all interest accruing and principal due with respect thereto after the Cut-off Date to the extent not applied in computing the Cut-off Date Principal Balance thereof and all related Prepayment Charges; (ii) the related Mortgage Files, (iii) the Custodial Account (other than any amounts representing any Servicer Prepayment Charge Payment Amount), the Distribution Account, the Class P Certificate Account and such assets that are deposited therein from time to time, together with any and all income, proceeds and payments with respect thereto; (iv) property that secured a Mortgage Loan and has been acquired by foreclosure, deed in lieu of foreclosure or otherwise; (v) the mortgagee’s rights under the Insurance Policies with respect to the Mortgage Loans; (vi) the rights under the Mortgage Loan Purchase Agreement, and (vii) all proceeds of the foregoing, including proceeds of conversion, voluntary or involuntary, of any of the foregoing into cash or other liquid property. Notwithstanding the foregoing, however, REMIC I specifically excludes (i) all payments and other collections of principal and interest due on the Mortgage Loans on or before the Cut-off Date, (ii) all Prepayment Charges payable in connection with Principal Prepayments made before the Cut-off Date, (iii) the Net WAC Reserve Fund and (iv) the Cap Contract.

REMIC I Regular Interest LTI-1 : One of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular Interest LTI-1 shall accrue interest at the related Uncertificated REMIC I Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

 

 

 

REMIC I Regular Interest LTI-IO-A : One of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-A shall accrue interest at the related Uncertificated REMIC I Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC I Regular Interest LTI-IO-B : One of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-B shall accrue interest at the related Uncertificated REMIC I Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC I Regular Interest LTI-IO-C : One of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-C shall accrue interest at the related Uncertificated REMIC I Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC I Regular Interest LTI-IO-D : One of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-D shall accrue interest at the related Uncertificated REMIC I Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC I Regular Interest LTI-IO-E : One of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-E shall accrue interest at the related Uncertificated REMIC I Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC I Regular Interest LTI-IO-F : One of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-F shall accrue interest at the related Uncertificated REMIC I Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC I Regular Interest LTI-IO-G : One of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-G shall accrue interest at the related Uncertificated REMIC I Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC I Regular Interest LTI-IO-H : One of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-H shall accrue interest at the related Uncertificated REMIC I Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC I Regular Interest LTI-P : One of the separate non-certificated beneficial ownership interests in REMIC I issued hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular Interest LTI-P 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 the Preliminary Statement hereto.

REMIC I Regular Interests : REMIC I Regular Interest LTI-1, REMIC I Regular Interest LTI-IO-A, REMIC I Regular Interest LTI-IO-B, REMIC I Regular Interest LTI-IO-C, REMIC I Regular Interest LTI-IO-D, REMIC I Regular Interest LTI-IOE, REMIC I Regular Interest LTI-IO-F, REMIC I Regular Interest LTI-IO-G, REMIC I Regular Interest LTI-IO-H and REMIC I Regular Interest LTI-P.

REMIC II : The segregated pool of assets consisting of all of the REMIC I Regular Interests conveyed in trust to the Trustee, for the benefit of REMIC III, as holder of the REMIC II Regular Interests, and the Class R-2 Interest pursuant to Section 2.07, and all amounts deposited therein, with respect to which a separate REMIC election is to be made.

REMIC II Interest Loss Allocation Amount : With respect to any Distribution Date, an amount equal to (a) the product of (i) the aggregate Stated Principal Balance of the Mortgage Loans and REO Properties then outstanding and (ii) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular Interest II-LTAA minus the Marker Rate, divided by (b) 12.

REMIC II Overcollateralization Amount : With respect to any date of determination, (i) 1% of the aggregate Uncertificated Principal Balances of the REMIC II Regular Interests minus (ii) the aggregate of the Uncertificated Principal Balances of REMIC II Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5, REMIC II Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3, REMIC II Regular Interest LTII-M4 and REMIC II Regular Interest LTII-P, in each case as of such date of determination.

REMIC II Principal Loss Allocation Amount : With respect to any Distribution Date, an amount equal to (a) the product of (i) the aggregate Stated Principal Balance of the Mortgage Loans and REO Properties then outstanding and (ii) 1 minus a fraction, the numerator of which is two times the aggregate of the Uncertificated Principal Balances of REMIC II Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5, REMIC II Regular Interest LTII-

 

 

M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3 and REMIC II Regular Interest LTII-M4 and the denominator of which is the aggregate of the Uncertificated Principal Balances of REMIC II Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5, REMIC II Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3, REMIC II Regular Interest LTII-M4 and REMIC II Regular Interest LTII-ZZ.

REMIC II Regular Interests : REMIC II Regular Interest LTII-AA, REMIC II Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5, REMIC II Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3, REMIC II Regular Interest LTII-M4, REMIC II Regular Interest LTII-IO, REMIC II Regular Interest LTII-ZZ and REMIC II Regular Interest LTII-P.

REMIC II Regular Interest LTII-AA: One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-AA shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-A1 : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-A1 shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-A2 : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-A2 shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-A3 : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-A3 shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-A4 : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-A4 shall accrue interest at the related Uncertificated

 

 

REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-A5 : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-A5 shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-IO : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-IO shall accrue interest as provided herein and shall not be entitled to distributions of principal.

REMIC II Regular Interest LTII-M1 : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-M1 shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-M2 : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-M2 shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-M3 : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-M3 shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-M4 : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-M4 shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-P : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-P 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-ZZ : One of the separate non-certificated beneficial ownership interests in REMIC II issued hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-ZZ shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate in effect from time to time, 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 the Preliminary Statement hereto.

REMIC II Regular Interest LTII-ZZ Maximum Interest Deferral Amount : With respect to any Distribution Date, the excess of (i) accrued interest at the Uncertificated REMIC II Pass-Through Rate applicable to REMIC II Regular Interest LTII-ZZ for such Distribution Date on a balance equal to the Uncertificated Principal Balance of REMIC II Regular Interest LTII-ZZ minus the REMIC II Overcollateralization Amount, in each case for such Distribution Date, over (ii) Uncertificated Accrued Interest on REMIC II Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5, REMIC II Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3 and REMIC II Regular Interest LTII-M4 for such Distribution Date, with the rate on each such REMIC II Regular Interest subject to a cap equal to the related Pass-Through Rate.

REMIC II Required Overcollateralization Amount : 1% of the Required Overcollateralization Amount.

REMIC III : The segregated pool of assets consisting of all of the REMIC II Regular Interests conveyed in trust to the Trustee, for the benefit of the REMIC III Certificateholders pursuant to Section 2.07, and all amounts deposited therein, with respect to which a separate REMIC election is to be made.

REMIC III Certificate : Any Regular Certificate or Class R Certificate.

REMIC III Certificateholder : The Holder of any REMIC III Certificate.

REMIC Opinion : Shall mean an Opinion of Counsel to the effect that the proposed action will not have an adverse affect on any REMIC created hereunder.

REMIC Provisions : Provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related provisions, and proposed, temporary and final regulations and published rulings, notices and announcements promulgated thereunder, as the foregoing may be in effect from time to time as well as provisions of applicable state laws.

REMIC Regular Interest : A REMIC I Regular Interest, REMIC II Regular Interest or a Regular Certificate.

Remittance Date : Shall mean the eighteenth (18 ^th ) day of the month and if such day is not a Business Day, the immediately preceding Business Day.

 

 

 

REO Property : A Mortgaged Property acquired by the related Servicer through foreclosure or deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan.

Replacement Mortgage Loan : A Mortgage Loan or Mortgage Loans in the aggregate substituted by the Seller for a Deleted Mortgage Loan, which must, on the date of such substitution, as confirmed in a request for release in accordance with the terms of the Custodial Agreement, (i) have a Stated Principal Balance, after deduction of the principal portion of the Scheduled Payment due in the month of substitution, not in excess of, and not less than 90% of, the Stated Principal Balance of the Deleted Mortgage Loan; (ii) have a fixed Mortgage Rate not less than or more than 1% per annum higher than the Mortgage Rate of the Deleted Mortgage Loan; (iii) have the same or higher credit quality characteristics than that of the Deleted Mortgage Loan; (iv) have a Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (v) have a remaining term to maturity no greater than (and not more than one year less than) that of the Deleted Mortgage Loan; (vi) not permit conversion of the Mortgage Rate from a fixed rate to a variable rate; (vii) be secured by a first lien on the related Mortgaged Property; (viii) constitute the same occupancy type as the Deleted Mortgage Loan or be owner occupied; and (ix) comply with each representation and warranty set forth in the Mortgage Loan Purchase Agreement.

Required Insurance Policy : With respect to any Mortgage Loan, any insurance policy that is required to be maintained from time to time under this Agreement, the M&T Servicing Agreement, the GreenPoint Servicing Agreement or the Wells Fargo Servicing Agreement, as applicable.

Required Overcollateralization Amount : With respect to any Distribution Date prior to the Stepdown Date, 1.10% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, and with respect to any Distribution Date thereafter, the greater of (i) 2.20% of the Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after giving effect to scheduled payments of principal due during the related Due Period to the extent received or advanced, unscheduled collections of principal received during the related Prepayment Period and after reduction for Realized Losses incurred during the related Prepayment Period) and (ii) 0.35% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.

Required Overcollateralization Percentage : With respect to any Distribution Date, a percentage equal to (a) the Required Overcollateralization Amount divided by (b) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after giving effect to scheduled payments of principal due during the related Due Period, to the extent received or advanced, and unscheduled collections of principal received during the related Prepayment Period, and after reduction for Realized Losses incurred during the related Prepayment Period).

Residual Certificates : The Class R Certificates.

Responsible Officer : With respect to the Trustee or Securities Administrator, any Vice President, any Assistant Vice President, the Secretary, any Assistant Secretary, any Trust Officer, any other officer customarily performing functions similar to those performed by any of

 

 

the above designated officers or other officers of the Trustee or Securities Administrator specified by the Trustee or Securities Administrator having direct responsibility over this Agreement and customarily performing functions similar to those performed by any one of the designated officers, as to whom, with respect to a particular matter, such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

S&P : Standard & Poor’s, a division of The McGraw-Hill Companies, Inc. or its successor in interest.

Scheduled Payment : The scheduled monthly payment on a Mortgage Loan due on any Due Date allocable to principal and/or interest on such Mortgage Loan.

Securities Act : The Securities Act of 1933, as amended.

Securities Administrator : As of the Closing Date, Wells Fargo Bank, N.A. and thereafter, its respective successors in interest that meet the qualifications of this Agreement. The Securities Administrator and the Master Servicer shall at all times be the same Person or Affiliates.

Seller : Nomura Credit & Capital, Inc., a Delaware corporation, and its successors and assigns, in its capacity as seller of the Mortgage Loans to the Depositor.

Senior Certificates : The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5 and Class A-IO Certificates.

Senior Interest Distribution Amount : With respect to any Distribution Date and any Class of Senior Certificates will be equal to the Interest Distribution Amount for such Distribution Date for such Class and the Interest Carry Forward Amount, if any, for such Distribution Date for such Class.

Senior Principal Distribution Amount : With respect to any Distribution Date which occurs (i) prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect, the Principal Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in effect for that Distribution Date, the lesser of:

•	the Principal Distribution Amount for that Distribution Date; and

 

•

the excess, if any, of (A) the aggregate Certificate Principal Balance of the Senior Certificates immediately prior to that Distribution Date over (B) the positive difference between (i) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after reduction for Realized Losses incurred during the related Prepayment Period) and (ii) the product of (x) the aggregate Stated Principal Balance of the Mortgage Loans as of the last day of the related Due Period (after reduction for Realized Losses incurred during the related Prepayment Period) and (y) the sum of 12.00% and the Required Overcollateralization Percentage.

 

 

 

 

Servicer : Shall mean either GMACM, M&T, GreenPoint or Wells Fargo or any successor thereto appointed hereunder in connection with the servicing and administration of the Mortgage Loans.

Servicer Default : As defined in Section 8.01.

Servicer Prepayment Charge Payment Amount : The amount payable by GMACM in respect of any waived Prepayment Charges pursuant to Section 3.01.

Servicing Advances : All customary, reasonable and necessary “out of pocket” costs and expenses (including reasonable legal fees) incurred in the performance by a Servicer of its servicing obligations hereunder, including, but not limited to, the cost of (i) the preservation, restoration, inspection, valuation and protection of a Mortgaged Property, (ii) any enforcement or judicial proceedings, including foreclosures, and including any expenses incurred in relation to any such proceedings that result from the Mortgage Loan being registered in the MERS® System, (iii) the management and liquidation of any REO Property (including, without limitation, realtor’s commissions), (iv) compliance with any obligations under Section 3.07 hereof to cause insurance to be maintained and (v) payment of taxes.

Servicing Agreements : The GreenPoint Servicing Agreement, the M&T Servicing Agreement and the Wells Fargo Servicing Agreement.

Servicing Fee : As to each Mortgage Loan and any Distribution Date, an amount equal to 1/12th of the Servicing Fee Rate multiplied by the Stated Principal Balance of such Mortgage Loan as of the last day of the related Due Period or, in the event of any payment of interest that accompanies a Principal Prepayment in full during the related Due Period made by the Mortgagor immediately prior to such prepayment, interest at the Servicing Fee Rate on the same Stated Principal Balance of such Mortgage Loan used to calculate the payment of interest on such Mortgage Loan.

Servicing Fee Rate : 0.25% per annum.

Servicing Officer : Any officer of a Servicer involved in, or responsible for, the administration and the servicing of Mortgage Loans, whose name and specimen signature appear on a list of Servicing Officers furnished by the related Servicer to the Trustee, the Master Servicer and the Depositor on the Closing Date, as such list may from time to time be amended.

Startup Day : The Startup Day for each REMIC formed hereunder shall be the Closing Date.

Stated Principal Balance : With respect to any Mortgage Loan or related REO Property and any Distribution Date, the Cut-off Date Principal Balance thereof 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 Section 3.09 of this Agreement or in accordance with the M&T Servicing Agreement, the GreenPoint Servicing Agreement or

 

 

the Wells Fargo Servicing Agreement, as applicable, 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 during the related Prepayment Period. The Stated Principal Balance of a Liquidated Loan equals zero.

Stepdown Date : The later to occur of (x) the Distribution Date in September 2008 and (y) the first Distribution Date on which the Credit Enhancement Percentage of the Senior Certificates (calculated for this purpose only after taking into account distributions of principal on the Mortgage Loans, but prior to any distribution of the Principal Distribution Amount to the holders of the Certificates then entitled to distributions of principal on the Distribution Date) is greater than or equal to approximately 16.10%.

Subsequent Recoveries : Shall mean all amounts in respect of principal received by a Servicer on a Mortgage Loan for which a Realized Loss was previously incurred.

Subservicing Agreement : Any agreement entered into between a servicer and a subservicer with respect to the subservicing of any Mortgage Loan subject to this Agreement by such subservicer.

Substitution Adjustment Amount : The meaning ascribed to such term pursuant to Section 2.03(d).

Successor Servicer : The Master Servicer or any successor to a Servicer appointed pursuant to Section 8.02 of this Agreement, the M&T Servicing Agreement, the GreenPoint Servicing Agreement or the Wells Fargo Servicing Agreement, as applicable, after the occurrence of a Servicer Default or upon the resignation of the related Servicer pursuant to this Agreement, the M&T Servicing Agreement, the GreenPoint Servicing Agreement or the Wells Fargo Servicing Agreement, as applicable.

Tax Matters Person : The person designated as “tax matters person” in the manner provided under Treasury regulation § 1.860F-4(d) and temporary Treasury regulation § 301.6231(a)(7)-1T. The holder of the greatest Percentage Interest in a Class of Residual Certificates shall be the Tax Matters Person for the related REMIC. The Securities Administrator, or any successor thereto or assignee thereof shall serve as tax administrator hereunder and as agent for the related Tax Matters Person.

Transfer Affidavit : As defined in Section 6.02(c).

Transfer : Any direct or indirect transfer or sale of any Ownership Interest in a Certificate.

Trigger Event : With respect to any Distribution Date, a Trigger Event is in effect if (x) the percentage obtained by dividing (i) the aggregate Stated Principal Balance of Mortgage Loans delinquent sixty (60) days or more (including Mortgage Loans in foreclosure or discharged in bankruptcy or any REO Property) by (ii) the aggregate Stated Principal Balance of the Mortgage Loans, in each case, as of the last day of the previous calendar month, exceeds 40.00% of the Credit Enhancement Percentage of the Senior Certificates for the prior Distribution Date, or (y) the aggregate amount of Realized Losses incurred since the Cut-off

 

 

Date through the last day of the related Due Period divided by the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date exceeds the applicable percentages set forth below with respect to such Distribution Date:

Distribution Date	Percentage
September 2008 to August 2009	1.00%
September 2009 to August 2010	1.50%
September 2010 to August 2012	2.00%
September 2012 and thereafter	2.25%

 

*The cumulative loss percentages set forth above are applicable to the first Distribution Date in the corresponding range of Distribution Dates. The cumulative loss percentage for each succeeding Distribution Date in a range increases incrementally by 1/12 of the positive difference between the percentage applicable to the first Distribution Date in that range and the percentage applicable to the first Distribution Date in the succeeding range.

Trust Fund : Collectively, the assets of REMIC I, REMIC II, REMIC III, the Net WAC Reserve Fund and the Cap Contract.

Trustee : HSBC Bank USA, National Association, a national banking association, not in its individual capacity, but solely in its capacity as trustee for the benefit of the Certificateholders under this Agreement, and any successor thereto, and any corporation or national banking association resulting from or surviving any consolidation or merger to which it or its successors may be a party and any successor trustee as may from time to time be serving as successor trustee hereunder.

Uncertificated Accrued Interest : With respect to each Uncertificated REMIC Regular Interest on each Distribution Date, an amount equal to one month’s interest at the related Uncertificated REMIC I Pass-Through Rate or Uncertificated REMIC II Pass-Through Rate, as applicable, on the Uncertificated Principal Balance or Uncertificated Notional Amount, as applicable, of such Uncertificated REMIC Regular Interest. In each case, Uncertificated Accrued Interest will be reduced by any Prepayment Interest Shortfalls and shortfalls resulting from application of the Relief Act (allocated to such REMIC Regular Interests as set forth in Sections 1.02 and 5.07).

Uncertificated Notional Amount : With respect to REMIC II Regular Interest LTII-IO and (i) each Distribution Date from and including the 1 ^st Distribution to and including the 6 ^th Distribution Date, the aggregate Uncertificated Principal Balances of REMIC I Regular Interest LTI-IO-A through REMIC I Regular Interest LTI-IO-H, (ii) each Distribution Date from and including the 7 ^th Distribution to and including the 10 ^th Distribution Date, the aggregate Uncertificated Principal Balances of REMIC I Regular Interest LTI-IO-B through REMIC I Regular Interest LTI-IO-H, (iii) each Distribution Date from and including the 11 ^th Distribution Date to and including the 13 ^th Distribution Date, the aggregate Uncertificated Principal Balances of REMIC I Regular Interest LTI-IO-C through REMIC I Regular Interest LTI-IO-H, (iv) each Distribution Date from and including the 14 ^th Distribution Date to and including the 15 ^th Distribution Date, the aggregate Uncertificated Principal Balances of REMIC I Regular Interest

 

 

LTI-IO-D through REMIC I Regular Interest LTI-IO-H, (v) each Distribution Date from and including the 16 ^th Distribution to and including the 19 ^th Distribution Date, the aggregate Uncertificated Principal Balances of REMIC I Regular Interest LTI-IO-E through REMIC I Regular Interest LTI-IO-H, (vi) each Distribution Date from and including the 20 ^th Distribution to and including the 21 ^st Distribution Date, the aggregate Uncertificated Principal Balances of REMIC I Regular Interest LTI-IO-F through REMIC I Regular Interest LTI-IO-H, (vii) each Distribution Date from and including the 22 ^nd Distribution to and including the 23 ^rd Distribution Date, the aggregate Uncertificated Principal Balances of REMIC I Regular Interest LTI-IO-G and REMIC I Regular Interest LTI-IO-H, and (viii) the 24 ^th Distribution Date, the aggregate Uncertificated Principal Balance of REMIC I Regular Interest LTI-IO-H, and (ix) each Distribution Date thereafter, $0.

Uncertificated Principal Balance : With respect to each REMIC Regular Interest (other than REMIC II Regular Interest LTII-IO), the principal amount of such REMIC Regular Interest outstanding as of any date of determination. As of the Closing Date, the Uncertificated Principal Balance of each REMIC Regular Interest (other than REMIC II Regular Interest LTII-IO) shall equal the amount set forth in the Preliminary Statement hereto as its initial Uncertificated Principal Balance. On each Distribution Date, the Uncertificated Principal Balance of each REMIC Regular Interest shall be reduced by all distributions of principal made on such REMIC Regular Interest on such Distribution Date pursuant to Sections 5.07 and 5.08 and, if and to the extent necessary and appropriate, shall be further reduced on such Distribution Date by Realized Losses as provided in Sections 5.07 and 5.08. The Uncertificated Principal Balance of each REMIC Regular Interest shall never be less than zero. REMIC I Regular Interest LTII-IO will not have an Uncertificated Principal Balance.

Uncertificated REMIC I Pass-Through Rate : A per annum rate equal to the average of the Net Mortgage Rates of the Mortgage Loans as of the first day of the related Due Period, weighted on the basis of the Stated Principal Balances as of the first day of the related Due Period. REMIC I Regular Interest LTI-P will not accrue interest.

Uncertificated REMIC II Pass-Through Rate : With respect to REMIC II Regular Interest LTII-AA, REMIC II Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5, REMIC II Regular Interest LTII-A6, REMIC II Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3, REMIC II Regular Interest LTII-M4 and REMIC II Regular Interest LTII-ZZ, a per annum rate (but not less than zero) equal to the weighted average of: (x) with respect to REMIC I Regular Interest LTI-1, the Uncertificated REMIC I Pass-Through Rate for such REMIC I Regular Interest for each such Distribution Date, and (y) with respect to REMIC I Regular Interest LTI-IO-A through REMIC I Regular Interest LTI-IO-H for each Distribution Date listed below, the weighted average of the rates listed below for each such REMIC I Regular Interest listed below, weighted on the basis of the Uncertificated Principal Balance of each such REMIC I Regular Interest:

 

Distribution Date	REMIC I Regular Interests	Rate
1	LTI-IO-A through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
2	LTI-IO-A through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%

 

 

 

 

 

3	LTI-IO-A through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
4	LTI-IO-A through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
5	LTI-IO-A through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
6	LTI-IO-A through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
7	LTI-IO-B through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A	Uncertificated REMIC I Pass-Through Rate
8	LTI-IO-B through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A	Uncertificated REMIC I Pass-Through Rate
9	LTI-IO-B through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A	Uncertificated REMIC I Pass-Through Rate
10	LTI-IO-B through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A	Uncertificated REMIC I Pass-Through Rate
11	LTI-IO-C through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A and LTI-IO-B	Uncertificated REMIC I Pass-Through Rate
12	LTI-IO-C through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A and LTI-IO-B	Uncertificated REMIC I Pass-Through Rate
13	LTI-IO-C through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A and LTI-IO-B	Uncertificated REMIC I Pass-Through Rate
14	LTI-IO-D through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-C	Uncertificated REMIC I Pass-Through Rate
15	LTI-IO-D through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-C	Uncertificated REMIC I Pass-Through Rate
16	LTI-IO-E through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-D	Uncertificated REMIC I Pass-Through Rate
17	LTI-IO-B5 through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-D	Uncertificated REMIC I Pass-Through Rate
18	LTI-IO-E through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-D	Uncertificated REMIC I Pass-Through Rate
19	LTI-IO-F through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-E	Uncertificated REMIC I Pass-Through Rate
20	LTI-IO-F through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-E	Uncertificated REMIC I Pass-Through Rate
21	LTI-IO-F through LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-E	Uncertificated REMIC I Pass-Through Rate
22	LTI-IO-G and LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-F	Uncertificated REMIC I Pass-Through Rate
23	LTI-IO-G and LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-F	Uncertificated REMIC I Pass-Through Rate
24	LTI-IO-H	(a) Uncertificated REMIC I Pass-Through Rate over (b) 3.50%
	LTI-IO-A through LTI-IO-G	Uncertificated REMIC I Pass-Through Rate
25 and thereafter	LTI-IO-A through LTI-IO-H	Uncertificated REMIC I Pass-Through Rate

 

With respect to REMIC II Regular Interest LTII-IO, (i) for the first twenty-four distribution dates, 3.50% and (ii) thereafter, 0.00%. REMIC II Regular Interest LTII-P will not accrue interest.

Uncertificated REMIC Regular Interest : The REMIC I Regular Interests and the REMIC II Regular Interests.

Voting Rights : The portion of the voting rights of all the Certificates that is allocated to any Certificate for purposes of the voting provisions hereunder. Voting Rights shall be allocated (i) 93% to the Certificates (other than the Class A-IO, Class X, Class P and the Residual Certificates), (ii) 3% to the Class X Certificates, (iii) 1% to the Class P Certificates, (iv) 1% to the Class R Certificates and (v) 2% to the Class A-IO Certificates until the Distribution Date in August 2007 and thereafter such percentage of voting rights shall be allocated to the remaining Classes of Publicly Offered Certificates. The allocation among the Certificates other than the Class A-IO, Class X, Class P and Class R Certificates shall be in proportion to the Certificate Principal Balance of each Class relative to the Certificate Principal Balance of all other such

 

 

Classes. Voting Rights will be allocated among the Certificates of the Class A-IO, Class X, Class P and Class R Certificates shall be in accordance with their respective Percentage Interests.

Wells Fargo : Wells Fargo Bank, N.A., or any successor thereto appointed under the Wells Fargo Servicing Agreement.

Wells Fargo Assignment Agreement : The Assignment, Assumption and Recognition Agreement, dated as of August 30, 2005, by and among and the Seller, Wells Fargo and the Depositor evidencing the assignment of the Wells Fargo Servicing Agreement to the Depositor.

Wells Fargo Mortgage Loans : Those Mortgage Loans subject to this Agreement which were purchased by the Seller and serviced pursuant to the Wells Fargo Servicing Agreement.

Wells Fargo Servicing Agreement : Shall mean the Seller’s Warranties and Servicing Agreement, dated as of February 1, 2005, by and between the Seller and Wells Fargo, as modified by the Wells Fargo Assignment Agreement.

Section 1.02

Allocation of Certain Interest Shortfalls .

For purposes of calculating the amount of the Interest Distribution Amount for the Senior Certificates, Mezzanine Certificates and Class X Certificates for any Distribution Date, (1) the aggregate amount of any Net Interest Shortfalls in respect of the Mortgage Loans for any Distribution Date shall first reduce the Interest Distribution Amount payable to the Class M-4 Certificates, second, reduce the Interest Distribution Amount payable to the Class M-3 Certificates, third, reduce the Interest Distribution Amount payable to the Class M-2 Certificates, fourth, reduce the Interest Distribution Amount payable to the Class M-1 Certificates and fifth, reduce the Interest Distribution Amount payable to the Senior Certificates, on a pro rata basis based on, and to the extent of, one month’s interest at the then applicable respective Pass-Through Rate on the respective Certificate Principal Balance or Certificate Notional Balance, as applicable of each such Certificate and (2) the aggregate amount of any Realized Losses allocated to the Mezzanine Certificates and Net WAC Rate Carryover Amount paid to the Senior Certificates (other than the Class A-IO Certificates) and the Mezzanine Certificates incurred for any Distribution Date shall be allocated to the Class X Certificates based on, and to the extent of, one month’s interest at the then applicable Pass-Through Rate on the Certificate Notional Balance thereof on any Distribution Date.

For purposes of calculating the amount of Uncertificated Accrued Interest for the REMIC I Regular Interests for any Distribution Date, the aggregate amount of any Net Interest Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date shall be allocated first, to REMIC I Regular Interest LTI-1, to the extent of one month’s interest at the then applicable respective Uncertificated REMIC I Pass-Through Rate on the Uncertificated Principal Balance of each such REMIC I Regular Interest; and then, to REMIC I Regular Interest LTI-IO-A, REMIC I Regular Interest LTI-IO-B, REMIC I Regular Interest LTI-IO-C, REMIC I Regular Interest LTI-IO-D, REMIC I Regular Interest LTI-IO-E, REMIC I Regular Interest LTI-IO-F, REMIC I Regular Interest LTI-IO-G and REMIC I Regular Interest LTI-IO-H, in each case to the extent of one month’s interest at the then applicable respective Uncertificated REMIC I Pass-

 

 

Through Rate on the respective Uncertificated Principal Balance of each such REMIC I Regular Interest.

For purposes of calculating the amount of Uncertificated Accrued Interest for the REMIC II Regular Interests for any Distribution Date, the aggregate amount of any Net Interest Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date shall be allocated among REMIC II Regular Interest LTII-AA, REMIC II Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5, REMIC II Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3, REMIC II Regular Interest LTII-M4 and REMIC II Regular Interest LTII-ZZ, pro rata based on, and to the extent of, one month’s interest at the then applicable respective Uncertificated REMIC II Pass-Through Rate on the respective Uncertificated Principal Balance of each such REMIC II Regular Interest.

 

 

 

ARTICLE II

 

CONVEYANCE OF TRUST FUND

REPRESENTATIONS AND WARRANTIES

Section 2.01

Conveyance of Trust Fund .

The Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of the Seller in and to the assets in the Trust Fund.

The Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein.

The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the use and benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund.

Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, to the extent of the Mortgage Loans sold under the Mortgage Loan Purchase Agreement and all rights of the Seller and the Depositor under the M&T Servicing Agreement, the GreenPoint Servicing Agreement and the Wells Fargo Servicing Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Depositor, the Seller or any other Person in connection with the Mortgage Loans, the M&T Servicing Agreement, the GreenPoint Servicing Agreement and the Wells Fargo Servicing Agreement or any other agreement or instrument relating thereto except as specifically set forth herein. Any monetary obligation of the Seller as the purchaser or owner under the M&T Servicing Agreement to M&T as Servicer, any monetary obligation of the Seller as the purchaser or owner under the GreenPoint Servicing Agreement to GreenPoint as Servicer and any monetary obligation of the Seller as the purchaser or owner under the Wells Fargo Servicing Agreement to Wells Fargo as Servicer following the Closing Date shall be satisfied by the Trustee, as assignee of the Seller, only from funds then on deposit in the Distribution Account.

In connection with such sale, the Depositor does hereby deliver to, and deposit with the related Custodian pursuant to the related Custodial Agreement the documents with respect to each Mortgage Loan as described under Section 2 of the related Custodial Agreement (the “Mortgage Loan Documents”). In connection with such delivery and as further described in the related Custodial Agreement, the related Custodian will be required to review such Mortgage Loan Documents and deliver to the Trustee, the Depositor, the Servicers and the Seller certifications (in the forms attached to the related Custodial Agreement) with respect to such review with exceptions noted thereon. In addition, under the related Custodial Agreement the Depositor will be required to cure certain defects with respect to the Mortgage Loan Documents

 

 

for the related Mortgage Loans after the delivery thereof by the Depositor to the related Custodian as more particularly set forth therein.

Notwithstanding anything to the contrary contained herein, the parties hereto acknowledge that the functions of the Trustee with respect to the custody, acceptance, inspection and release of the Mortgage Files and preparation and delivery of the certifications shall be performed by the related Custodian pursuant to the terms and conditions of the related Custodial Agreement.

The Depositor shall deliver or cause to be delivered to the Servicers copies of all trailing documents required to be included in the related Mortgage File at the same time the originals or certified copies thereof are delivered to the related Custodian, such documents including the mortgagee policy of title insurance and any Mortgage Loan Documents upon return from the recording office. The Servicers shall not be responsible for any custodian fees or other costs incurred in obtaining such documents and the Depositor shall cause the Servicers to be reimbursed for any such costs the Servicers may incur in connection with performing its obligations under this Agreement, the M&T Servicing Agreement, the GreenPoint Servicing Agreement and the Wells Fargo Servicing Agreement.

Section 2.02

Acceptance of the Mortgage Loans .

(a)        Based on the initial trust receipt received by it from the related Custodian pursuant to the related Custodial Agreement, the Trustee acknowledges receipt, subject to the provisions of Section 2.01 hereof and Section 2 of the related Custodial Agreement, of the Mortgage Loan Documents and all other assets included in the definition of “REMIC I” under clauses (i), (ii) (iii), (v) and (vi) (to the extent of amounts deposited into the Distribution Account) and declares that it holds (or the related Custodian on its behalf holds) and will hold such documents and the other documents delivered to it constituting a Mortgage Loan Document, and that it holds (or the related Custodian on its behalf holds) or will hold all such assets and such other assets included in the definition of “REMIC I” in trust for the exclusive use and benefit of all present and future Certificateholders.

(b)        In conducting the review of the Mortgage Files in accordance with the related Custodial Agreement, the related Custodian on the Trustee’s behalf will ascertain whether all required documents have been executed and received and whether those documents relate to the Mortgage Loans identified in Exhibit B to this Agreement, as supplemented. If the related Custodian finds any document constituting part of the Mortgage File not to have been executed or received, or to be unrelated to the Mortgage Loans identified in Exhibit B, the Seller shall correct or cure any such defect or, if prior to the end of the second anniversary of the Closing Date, the Seller may substitute for the related Mortgage Loan a Replacement Mortgage Loan, which substitution shall be accomplished in the manner and subject to the conditions set forth in Section 2.03 or shall deliver to the Trustee an Opinion of Counsel to the effect that such defect does not materially or adversely affect the interests of the Certificateholders in such Mortgage Loan within sixty (60) days from the date of notice from the related Custodian of the defect and if the Seller fails to correct or cure the defect or deliver such opinion within such period, the Seller will, subject to Section 2.03, within ninety (90) days from the notification of the related Custodian purchase such Mortgage Loan at the Purchase Price; provided, however, that if such

 

 

defect relates solely to the inability of the Seller to deliver the Mortgage, assignment thereof to the related Custodian, or intervening assignments thereof with evidence of recording thereon because such documents have been submitted for recording and have not been returned by the applicable jurisdiction, the Seller shall not be required to purchase such Mortgage Loan if the Seller delivers such documents promptly upon receipt, but in no event later than 360 days after the Closing Date.

(c)        No later than 180 days after the Closing Date, the related Custodian on the Trustee’s behalf will review, for the benefit of the Certificateholders, the Mortgage Files and will execute and deliver or cause to be executed and delivered to the Seller and the Trustee, a final trust receipt substantially in the form annexed to the related Custodial Agreement. In conducting such review, the related Custodian on the Trustee’s behalf and in accordance with the terms of the related Custodial Agreement will ascertain whether each document required to be recorded has been returned from the recording office with evidence of recording thereon and the related Custodian on the Trustee’s behalf has received either an original or a copy thereof, as required in the related Custodial Agreement. If the related Custodian finds that any document with respect to a Mortgage Loan has not been received, or is unrelated to the Mortgage Loans identified in Exhibit B or appears to be defective on its face, the related Custodian shall note such defect in the exception report attached the final trust receipt issued pursuant to the related Custodial Agreement and the Seller shall correct or cure any such defect or, if prior to the end of the second anniversary of the Closing Date, the Seller may substitute for the related Mortgage Loan a Replacement Mortgage Loan, which substitution shall be accomplished in the manner and subject to the conditions set forth in Section 2.03 or shall deliver to the Trustee an Opinion of Counsel to the effect that such defect does not materially or adversely affect the interests of Certificateholders in such Mortgage Loan within 60 days from the date of notice from the Trustee of the defect and if the Seller is unable within such period to correct or cure such defect, or to substitute the related Mortgage Loan with a Replacement Mortgage Loan or to deliver such opinion, the Seller shall, subject to Section 2.03, within 90 days from the notification of the Trustee, purchase such Mortgage Loan at the Purchase Price; provided, however, that if such defect relates solely to the inability of the Seller to deliver the Mortgage, assignment thereof to the Trustee or intervening assignments thereof with evidence of recording thereon, because such documents have not been returned by the applicable jurisdiction, the Seller shall not be required to purchase such Mortgage Loan, if the Seller delivers such documents promptly upon receipt, but in no event later than 360 days after the Closing Date.

(d)        In the event that a Mortgage Loan is purchased by the Seller in accordance with subsections 2.02(a) or (b) above or Section 2.03, the Seller shall remit the applicable Purchase Price to the related Servicer for deposit in the related Custodial Account and shall provide written notice to the Securities Administrator detailing the components of the Purchase Price, signed by an authorized officer. Upon deposit of the Purchase Price in the related Custodial Account and upon receipt of a request for release (in the form attached to the related Custodial Agreement) with respect to such Mortgage Loan, the related Custodian, on behalf of the Trustee, will release to the Seller the related Mortgage File and the Trustee shall execute and deliver all instruments of transfer or assignment, without recourse, 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 deposit into the related Custodial Account was made. The Trustee shall promptly notify the Rating Agencies of such repurchase. The obligation

 

 

of the Seller to cure, repurchase or substitute for any Mortgage Loan as to which a defect in a constituent document exists shall be the sole remedies respecting such defect available to the Certificateholders or to the Trustee on their behalf. The Seller shall promptly reimburse the Trustee for any expenses incurred by the Trustee in respect of enforcing the remedies for such breach.

(e)        The Seller shall deliver to the related Custodian the Mortgage Note and other documents constituting the Mortgage File with respect to any Replacement Mortgage Loan, which the related Custodian will review as provided in the related Custodial Agreement, provided, that the Closing Date referred to therein shall instead be the date of delivery of the Mortgage File with respect to each Replacement Mortgage Loan.

Section 2.03

Representations, Warranties and Covenants of GMACM and the Seller .

(a)        GMACM hereby represents and warrants to, and covenants with, the Seller, the Depositor, the Master Servicer, the Securities Administrator and the Trustee as follows, as of the Closing Date:

(i)         It is duly organized and is validly existing and in good standing under the laws of the Commonwealth of Pennsylvania and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by it in any state in which a Mortgaged Property relating to a GMACM Mortgage Loan is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to service the GMACM Mortgage Loans in accordance with the terms of this Agreement and to perform any of its other obligations under this Agreement in accordance with the terms hereof.

(ii)         It has the full corporate power and authority to service each GMACM Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on its part the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery hereof by the other parties hereto, constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except that (a) the enforceability hereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought and further subject to public policy with respect to indemnity and contribution under applicable securities law.

(iii)        The execution and delivery of this Agreement by it, the servicing of the GMACM Mortgage Loans by it under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms hereof are in its ordinary course of business and will not (A) result in a material breach of any term or provision of its charter or by-laws or (B) materially conflict with, result in a material breach, violation or acceleration of, or result in a

 

 

material default under, the terms of any other material agreement or instrument to which it is a party or by which it may be bound, or (C) constitute a material violation of any statute, order or regulation applicable to it of any court, regulatory body, administrative agency or governmental body having jurisdiction over it; and it is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair its ability to perform or meet any of its obligations under this Agreement.

(iv)        It is an approved servicer of conventional mortgage loans for Fannie Mae or Freddie Mac and is a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act.

(v)        No litigation is pending or, to the best of its knowledge, threatened in writing, against it that would materially and adversely affect the execution, delivery or enforceability of this Agreement or its ability to service the GMACM Mortgage Loans or to perform any of its other obligations under this Agreement in accordance with the terms hereof.

(vi)        No consent, approval, authorization or order of any court or governmental agency or body is required for its execution, delivery and performance of, or compliance with, this Agreement or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, it has obtained the same.

(vii)       GMACM has accurately and fully reported, and will continue to accurately and fully report its borrower credit files to each of the credit repositories in a timely manner materially in accordance with the Fair Credit Reporting Act and its implementing legislation.

(viii)      GMACM is a member of MERS in good standing, and will comply in all material respects with the rules and procedures of MERS in connection with the servicing of the GMACM Mortgage Loans that are registered with MERS.

(ix)        GMACM will not waive any Prepayment Charge with respect to a GMACM Mortgage Loan unless it is waived in accordance with the standard set forth in Section 3.01.

If the covenant of GMACM set forth in Section 2.03(a)(ix) above is breached by GMACM, GMACM will pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Custodial Account within 90 days of the earlier of discovery by GMACM or receipt of notice by GMACM of such breach. Notwithstanding the foregoing, or anything to the contrary contained in this Agreement, GMACM shall have no liability for a waiver of any Prepayment Charge in the event that GMACM’s determination to make such a waiver was made by GMACM in reliance on information properly received by GMACM from any Person in accordance with the terms of this Agreement.

 

 

 

(b)        The Seller hereby represents and warrants to and covenants with, the Depositor, GMACM, the Master Servicer, the Securities Administrator and the Trustee as follows, as of the Closing Date:

(i)         The Seller is duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly authorized and qualified to transact any and all business contemplated by this Agreement to be conducted by the Seller in any state in which a Mortgaged Property is located or is otherwise not required under applicable law to effect such qualification and, in any event, is in compliance with the doing business laws of any such state, to the extent necessary to ensure its ability to enforce each Mortgage Loan, to sell the Mortgage Loans in accordance with the terms of this Agreement and to perform any of its other obligations under this Agreement in accordance with the terms hereof.

(ii)         The Seller has the full corporate power and authority to sell each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the transactions contemplated by this Agreement and has duly authorized by all necessary corporate action on the part of the Seller the execution, delivery and performance of this Agreement; and this Agreement, assuming the due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except that (a) the enforceability hereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought and further subject to public policy with respect to indemnity and contribution under applicable securities law.

(iii)        The execution and delivery of this Agreement by the Seller, the sale of the Mortgage Loans by the Seller under this Agreement, the consummation of any other of the transactions contemplated by this Agreement, and the fulfillment of or compliance with the terms hereof are in the ordinary course of business of the Seller and will not (A) result in a material breach of any term or provision of the charter or by-laws of the Seller or (B) materially conflict with, result in a material breach, violation or acceleration of, or result in a material default under, the terms of any other material agreement or instrument to which the Seller is a party or by which it may be bound, or (C) constitute a material violation of any statute, order or regulation applicable to the Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller; and the Seller is not in breach or violation of any material indenture or other material agreement or instrument, or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it which breach or violation may materially impair the Seller’s ability to perform or meet any of its obligations under this Agreement.

(iv)        The Seller is an approved seller of conventional mortgage loans for Fannie Mae or Freddie Mac and is a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act.

 

 

 

(v)        No litigation is pending or, to the best of the Seller’s knowledge, threatened, against the Seller that would materially and adversely affect the execution, delivery or enforceability of this Agreement or the ability of the Seller to sell the Mortgage Loans or to perform any of its other obligations under this Agreement in accordance with the terms hereof.

(vi)        No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation of the transactions contemplated hereby, or if any such consent, approval, authorization or order is required, the Seller has obtained the same.

(vii)       The representations and warranties set forth in Section 8 of the Mortgage Loan Purchase Agreement are true and correct as of the Closing Date.

(viii)      No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or any comparable law and no Mortgage Loan is classified and/or defined as a “high cost”, “covered”, “high risk home” or “predatory” loan under any other state, federal or local law or regulation or ordinance (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).