EXHIBIT 4.1
NOMURA ASSET ACCEPTANCE
CORPORATION,
Depositor
NOMURA CREDIT & CAPITAL,
INC.,
Seller
GMAC MORTGAGE CORPORATION
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 September 1,
2005
NOMURA ASSET ACCEPTANCE
CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-AR5
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
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Section 1.01
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Defined Terms.
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Section 1.02
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Allocation of Certain Interest
Shortfalls.
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ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND WARRANTIES
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Section 2.01
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Conveyance of Trust Fund.
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Section 2.02
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Acceptance of the Mortgage
Loans.
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Section 2.03
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Representations, Warranties and
Covenants of the Servicer and the Seller.
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Section 2.04
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Representations and Warranties of
the Depositor.
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Section 2.05
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Delivery of Opinion of Counsel in
Connection with Substitutions and Repurchases.
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Section 2.06
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Issuance of the REMIC I Regular
Interests and the Class R Certificates.
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Section 2.07
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Conveyance of the REMIC I Regular
Interests.
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Section 2.08
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Issuance of Class R
Certificates.
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Section 2.09
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Establishment of Trust.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE
MORTGAGE LOANS; ACCOUNTS
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Section 3.01
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The Servicer to act as Servicer of
the Mortgage Loans.
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Section 3.02
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Due-on-Sale Clauses; Assumption
Agreements.
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Section 3.03
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Subservicers.
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Section 3.04
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Documents, Records and Funds in
Possession of the Servicer To Be Held for Trustee.
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Section 3.05
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Maintenance of Hazard
Insurance.
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Section 3.06
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Presentment of Claims and Collection
of Proceeds.
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Section 3.07
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Maintenance of Insurance
Policies.
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Section 3.08
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Reserved.
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Section 3.09
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Realization Upon Defaulted Mortgage
Loans; Determination of Excess Liquidation Proceeds and Realized
Losses; Repurchases of Certain Mortgage Loans.
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Section 3.10
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Servicing Compensation.
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Section 3.11
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REO Property.
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Section 3.12
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Liquidation Reports.
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Section 3.13
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Annual Certificate as to
Compliance.
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Section 3.14
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Annual Independent Certified Public
Accountants’ Servicing Report.
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Section 3.15
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Books and Records.
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Section 3.16
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The Trustee.
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Section 3.17
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REMIC-Related Covenants.
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Section 3.18
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[Reserved].
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Section 3.19
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Release of Mortgage
Files.
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Section 3.20
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Documents, Records and Funds in
Possession of the Servicer to be held for Trustee.
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Section 3.21
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Possession of Certain Insurance
Policies and Documents.
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Section 3.22
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[Reserved].
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Section 3.23
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UCC.
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Section 3.24
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Optional Purchase of Defaulted
Mortgage Loans.
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Section 3.25
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Obligations of the Servicer Under
Credit Risk Management Agreement.
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Section 3.26
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Collection of Mortgage Loan
Payments; Custodial Account.
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Section 3.27
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Permitted Withdrawals From the
Custodial Account.
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Section 3.28
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Reports to Master
Servicer.
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Section 3.29
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Collection of Taxes; Assessments and
Similar Items; Escrow Accounts.
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Section 3.30
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Adjustments to Mortgage Rate and
Scheduled Payment.
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Section 3.31
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Distribution Account.
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Section 3.32
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Permitted Withdrawals and Transfers
from the Distribution Account.
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Section 3.33
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Duties of the Credit Risk Manager;
Termination.
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Section 3.34
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Limitation Upon Liability of the
Credit Risk Manager.
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ARTICLE IV
ADMINISTRATION AND MASTER SERVICING
OF THE MORTGAGE LOANS
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Section 4.01
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The Master Servicer.
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Section 4.02
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Monitoring of Servicer.
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Section 4.03
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Fidelity Bond.
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Section 4.04
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Power to Act; Procedures.
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Section 4.05
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Due-on-Sale Clauses; Assumption
Agreements.
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Section 4.06
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Documents, Records and Funds in
Possession of Master Servicer To Be Held for Trustee.
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Section 4.07
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Standard Hazard Insurance and Flood
Insurance Policies.
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Section 4.08
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Presentment of Claims and Collection
of Proceeds.
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Section 4.09
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Maintenance of the Primary Mortgage
Insurance Policies.
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Section 4.10
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Trustee to Retain Possession of
Certain Insurance Policies and Documents.
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Section 4.11
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Realization Upon Defaulted
Loans.
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Section 4.12
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Compensation for the Master
Servicer.
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Section 4.13
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REO Property.
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Section 4.14
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Annual Officer’s Certificate
as to Compliance.
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Section 4.15
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Annual Independent
Accountant’s Servicing Report.
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Section 4.16
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Reports Filed with Securities and
Exchange Commission.
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Section 4.17
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[Reserved].
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Section 4.18
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Obligation of the Master Servicer in
Respect of Prepayment Interest Shortfalls.
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ARTICLE V
ADVANCES AND
DISTRIBUTIONS
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Section 5.01
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Advances; Advance
Facility.
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Section 5.02
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Compensating Interest
Payments.
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Section 5.03
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REMIC Distributions.
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Section 5.04
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Distributions.
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Section 5.05
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Allocation of Realized
Losses.
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Section 5.06
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Monthly Statements to
Certificateholders.
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Section 5.07
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REMIC Designations and REMIC I
Allocations.
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Section 5.08
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Prepayment Charges.
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Section 5.09
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Class P Certificate
Account.
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Section 5.10
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Basis Risk Shortfall Reserve
Fund.
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ARTICLE VI
THE CERTIFICATES
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Section 6.01
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The Certificates.
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Section 6.02
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Certificate Register; Registration
of Transfer and Exchange of Certificates.
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Section 6.03
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Mutilated, Destroyed, Lost or Stolen
Certificates.
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Section 6.04
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Persons Deemed Owners.
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Section 6.05
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Access to List of
Certificateholders’ Names and Addresses.
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Section 6.06
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Book-Entry Certificates.
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Section 6.07
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Notices to Depository.
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Section 6.08
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Definitive Certificates.
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Section 6.09
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Maintenance of Office or
Agency.
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ARTICLE VII
THE DEPOSITOR, THE SERVICER AND THE
MASTER SERVICER
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Section 7.01
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Liabilities of the Depositor, the
Servicer and the Master Servicer.
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Section 7.02
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Merger or Consolidation of the
Depositor, the Servicer or the Master Servicer.
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Section 7.03
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Indemnification of Depositor and the
Servicer.
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Section 7.04
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Limitations on Liability of the
Depositor, Securities Administrator, Master Servicer, Servicer and
Others.
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Section 7.05
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The Servicer Not to
Resign.
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Section 7.06
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Termination of the Servicer Without
Cause; Appointment of Special Servicer.
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Section 7.07
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Limitation on Resignation of the
Master Servicer.
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Section 7.08
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Assignment of Master
Servicing.
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Section 7.09
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Rights of the Depositor in Respect
of the Servicer and the Master Servicer.
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ARTICLE VIII
DEFAULT; TERMINATION OF SERVICER AND
MASTER SERVICER
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Section 8.01
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Events of Default.
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Section 8.02
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Master Servicer to Act; Appointment
of Successor.
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Section 8.03
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Notification to
Certificateholders.
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Section 8.04
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Waiver of Servicer Defaults and
Master Servicer Defaults.
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ARTICLE IX
CONCERNING THE TRUSTEE AND
SECURITIES ADMINISTRATOR
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Section 9.01
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Duties of Trustee and Securities
Administrator.
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Section 9.02
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Certain Matters Affecting the
Trustee and Securities Administrator.
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Section 9.03
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Trustee and Securities Administrator
not Liable for Certificates or Mortgage Loans.
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Section 9.04
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Trustee and Securities Administrator
May Own Certificates.
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Section 9.05
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Fees and Expenses of Trustee and
Securities Administrator.
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Section 9.06
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Eligibility Requirements for Trustee
and Securities Administrator.
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Section 9.07
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Resignation and Removal of Trustee
and Securities Administrator.
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Section 9.08
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Successor Trustee or Securities
Administrator.
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Section 9.09
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Merger or Consolidation of Trustee
or Securities Administrator.
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Section 9.10
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Appointment of Co-Trustee or
Separate Trustee.
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Section 9.11
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Appointment of Office or
Agency.
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Section 9.12
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Representations and
Warranties.
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Section 9.13
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Tax Matters.
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ARTICLE X
TERMINATION
|
Section 10.01
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Termination upon Liquidation or
Repurchase of all Mortgage Loans.
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Section 10.02
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Final Distribution on the
Certificates.
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Section 10.03
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Additional Termination
Requirements.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
|
Section 11.01
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Amendment.
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Section 11.02
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Recordation of Agreement;
Counterparts.
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Section 11.03
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Governing Law.
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Section 11.04
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Intention of Parties.
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Section 11.05
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Notices.
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Section 11.06
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Severability of
Provisions.
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Section 11.07
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Assignment.
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Section 11.08
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Limitation on Rights of
Certificateholders.
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Section 11.09
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Certificates Nonassessable and Fully
Paid.
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Exhibits
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Exhibit A-1
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Form of Class [I][II]-A-[1][2]
Certificates
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Exhibit A-2
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Form of Class III-A-[1][2][3][4]
Certificates
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Exhibit A-3
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Form of Class M-[1][2][3][4][5]
Certificates
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Exhibit A-4
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Form of Class P
Certificates
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Exhibit A-5
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Form of Class R
Certificates
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Exhibit A-6
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Form of Class X
Certificates
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Exhibit B
|
Mortgage Loan Schedule
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Exhibit C
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[Reserved]
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Exhibit D
|
Form of Transfer
Affidavit
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Exhibit E
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Form of Transferor
Certificate
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Exhibit F
|
Form of Investment Letter (Non-Rule
144A)
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Exhibit G
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Form of Rule 144A Investment
Letter
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Exhibit H
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[Reserved]
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Exhibit I
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DTC Letter of
Representations
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Exhibit J
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Form of Servicer’s
Certification
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Exhibit K
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Appendix E of the Standard &
Poor's Glossary For File Format For LEVELS® Version 5.6
Revised
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Exhibit X-1
|
Form of Schedule of Default Loan
Data
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Exhibit X-2
|
Form of Schedule of Realized
Losses/Gains
|
POOLING AND SERVICING AGREEMENT,
dated as of September 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 servicer (the
“Servicer”) 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 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 R-I 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.
|
|
Initial Uncertificated
Principal Balance
|
Uncertificated
REMIC I
Pass-Through Rate
|
Assumed Final Distribution Date
(1)
|
|
LTI-AA
|
$
|
267,145,609.10
|
(2)
|
October 25, 2035
|
|
LTI-IA1
|
$
|
189,215.00
|
(2)
|
October 25, 2035
|
|
LTI-IA2
|
$
|
21,610.00
|
(2)
|
October 25, 2035
|
|
LTI-IIA1
|
$
|
403,750.00
|
(2)
|
October 25, 2035
|
|
LTI-IIA2
|
$
|
71,255.00
|
(2)
|
October 25, 2035
|
|
LTI-IIIA1
|
$
|
500,000.00
|
(2)
|
October 25, 2035
|
|
LTI-IIIA2
|
$
|
958,675.00
|
(2)
|
October 25, 2035
|
|
LTI-IIIA3
|
$
|
119,845.00
|
(2)
|
October 25, 2035
|
|
LTI-IIIA4
|
$
|
175,395.00
|
(2)
|
October 25, 2035
|
|
LTI-M1
|
$
|
148,565.00
|
(2)
|
October 25, 2035
|
|
LTI-M2
|
$
|
44,980.00
|
(2)
|
October 25, 2035
|
|
LTI-M3
|
$
|
34,075.00
|
(2)
|
October 25, 2035
|
|
LTI-M4
|
$
|
16,355.00
|
(2)
|
October 25, 2035
|
|
LTI-M5
|
$
|
21,535.00
|
(2)
|
October 25, 2035
|
|
LTI-ZZ
|
$
|
2,746,696.21
|
(2)
|
October 25, 2035
|
|
LTI-P
|
$
|
100.00
|
(3)
|
October 25, 2035
|
|
LTI-1SUB
|
$
|
494.73
|
(2)
|
October 25, 2035
|
|
LTI-1GRP
|
$
|
4,711.23
|
(2)
|
October 25, 2035
|
|
LTI-2SUB
|
$
|
1,114.62
|
(2)
|
October 25, 2035
|
|
LTI-2GRP
|
$
|
10,614.72
|
(2)
|
October 25, 2035
|
|
LTI-3SUB
|
$
|
4,115.26
|
(2)
|
October 25, 2035
|
|
LTI-3GRP
|
$
|
39,193.56
|
(2)
|
October 25, 2035
|
|
LTI-XX
|
$
|
272,537,316.18
|
(2)
|
October 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 I Regular Interest.
|
|
(2)
|
Calculated in accordance with the
definition of “Uncertificated REMIC I Pass-Through
Rate” herein.
|
|
(3)
|
The REMIC I Regular Interest LTI-P
will not be entitled to distributions of interest.
|
|
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 R-II Interest will represent the sole
class of “residual interests” in REMIC II 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 II
created hereunder:
|
|
Initial Certificate
Principal Balance
|
|
Assumed Final Distribution Date
(1)
|
|
Class I-A-1
|
$
|
37,843,000.00
|
Class I-A-1 Pass Through
Rate
|
October 25, 2035
|
|
Class I-A-2
|
$
|
4,322,000.00
|
Class I-A-2 Pass Through
Rate
|
October 25, 2035
|
|
Class II-A-1
|
$
|
80,750,000.00
|
Class II-A-1 Pass Through
Rate
|
October 25, 2035
|
|
Class II-A-2
|
$
|
14,251,000.00
|
Class II-A-2 Pass Through
Rate
|
October 25, 2035
|
|
Class III-A-1
|
$
|
100,000,000.00
|
Class III-A-1 Pass Through
Rate
|
October 25, 2035
|
|
Class III-A-2
|
$
|
191,735,000.00
|
Class III-A-2 Pass Through
Rate
|
October 25, 2035
|
|
Class III-A-3
|
$
|
23,969,000.00
|
Class III-A-3 Pass Through
Rate
|
October 25, 2035
|
|
Class III-A-4
|
$
|
35,079,000.00
|
Class III-A-4 Pass Through
Rate
|
October 25, 2035
|
|
Class M-1
|
$
|
29,713,000.00
|
Class M-1 Pass Through
Rate
|
October 25, 2035
|
|
Class M-2
|
$
|
8,996,000.00
|
Class M-2 Pass-Through
Rate
|
October 25, 2035
|
|
Class M-3
|
$
|
6,815,000.00
|
Class M-3 Pass Through
Rate
|
October 25, 2035
|
|
Class M-4
|
$
|
3,271,000.00
|
Class M-4 Pass Through
Rate
|
October 25, 2035
|
|
Class M-5
|
$
|
4,307,000.00
|
Class M-5 Pass Through
Rate
|
October 25, 2035
|
|
Class X (2)
|
$
|
4,144,120.61
|
Class X Pass Through Rate
|
October 25, 2035
|
|
Class P
|
$
|
100.00
|
N/A (3)
|
October 25, 2035
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii)
of the Treasury regulations, the Distribution Date in the second
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 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 I Regular Interests (other than REMIC I Regular
Interest LTI-P).
|
|
(3)
|
The Class P Certificates will not be
entitled to distributions of interest.
|
In consideration of the mutual
agreements herein contained, the Depositor, the Servicer, the
Master Servicer, the Securities Administrator, the Seller and the
Trustee agree as follows:
ARTICLE I
DEFINITIONS
|
Section 1.01
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Defined Terms
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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 the
Servicer), or (y) as provided in Section 3.01 hereof, but in
no event below the standard set forth in clause (x).
Accepted Servicing
Practices : As defined in
Section 3.01.
Account : Either the Distribution Account or the
Custodial Account.
Accrual Period
: With respect to the Group I
Certificates, Group II Certificates and Class X Certificates and
any Distribution Date, the calendar month immediately preceding
such Distribution Date. With respect to the Group III Certificates
and Subordinate Certificates and any Distribution Date, the period
commencing on the immediately preceding Distribution Date (or with
respect to the first Accrual Period, the Closing Date) and ending
on the day immediately preceding the related Distribution Date. All
calculations of interest on the Group I Certificates, Group II
Certificates and Class X Certificates will be based on a 360-day
year consisting of twelve 30-day months. All calculations of
interest on the Group III Certificates and Subordinate Certificates
will be made based on a 360-day year and the actual number of days
elapsed in the related Accrual Period.
Adjustment Date
: With respect to each Mortgage
Loan, the first day of the month in which the Mortgage Rate of the
Mortgage Loan changes pursuant to the related Mortgage Note. The
first Adjustment Date following the Cut-Off Date as to each
Mortgage Loan is set forth in the Loan Schedule.
Advance : An advance of delinquent payments of principal
or interest in respect of a Mortgage Loan required to be made by
the Servicer or by the Master Servicer pursuant to
Section 5.01.
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).
Aggregate Loan Balance
: With respect to the Mortgage Loans
and any Distribution Date, the aggregate of the Stated Principal
Balances of the Mortgage Loans as of the last day of the related
Due Period.
Aggregate Loan Group
Balance: With respect to
a Loan Group and any Distribution Date, the aggregate of the Stated
Principal Balances of the Mortgage Loans in such Loan Group as of
the last day of the related Due Period.
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
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
Mortgage Loans due after the related Due Period and (ii) Principal
Prepayments and Liquidation Proceeds received in respect of the
Mortgage Loans after the last day of the related Prepayment
Period.
Applied Loss Amount
: With respect to the Publicly
Offered Certificates and any Distribution Date, the excess of the
aggregate Certificate Principal Balance of the Publicly Offered
Certificates over the Aggregate Loan Balance of the Mortgage Loans
after giving effect to all Realized Losses incurred with respect to
the Mortgage Loans during the related Due Period and payments of
principal to the Publicly Offered Certificates on such Distribution
Date.
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.
Assumed Final Distribution
Date : The Distribution
Date in October 2035.
Authorized Servicer
Representative : Any
officer of the Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name and
facsimile signature appear on a list of servicing officers
furnished to the Trustee and the Master Servicer by the Servicer on
the Closing Date, as such list may from time to time be
amended.
Available Distribution
Amount : The sum of the
Interest Remittance Amount and Principal Remittance Amount,
exclusive of amounts pursuant to Section 5.04.
Bankruptcy Code
: Title 11 of the United States
Code.
Basis Risk Shortfall Reserve
Fund : The segregated
non-interest bearing trust account created and maintained by the
Securities Administrator pursuant to Section 5.10
hereof.
Basis Risk Shortfall:
With respect to any Class of Group
III Certificates or Subordinate Certificates and any Distribution
Date, the sum of (i) the excess, if any, of the related
Current
Interest (calculated without regard
to the Net Funds Cap) over the related Current Interest (as it may
have been limited by the applicable Net Funds Cap) for the
applicable Distribution Date; (ii) any amount described in clause
(i) remaining unpaid from prior Distribution Dates; and (iii)
interest on the amount in clause (ii) for the related Accrual
Period calculated on the basis of the least of (x) One Month LIBOR
plus the applicable Certificate Margin, (y) the applicable Maximum
Interest Rate and (z) the Cap Rate.
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 Securities Administrator is located
or the States in which the Servicer’s servicing operations
are located are authorized or obligated by law or executive order
to be closed.
Cap Contracts
: Shall mean (i) the cap contract
between the Trustee and the Cap Provider, for the benefit of the
Holders of the Class III-A-1 Certificates, (ii) the cap contract
between the Trustee and the Cap Provider, for the benefit of the
Holders of the Class III-A-2 Certificates and (iii) the cap
contract between the Trustee and the Cap Provider, for the benefit
of the Holders of the Class III-A-3 Certificates.
Cap Provider
: Nomura Global Financial Products,
Inc., or any successor thereto.
Cap Rate : With respect to the Group III Certificates and
Subordinate Certificates, 11.00% per annum.
Carryforward Interest
: With respect to any Class of
Publicly Offered Certificates and any Distribution Date, the sum of
(i) the amount, if any, by which (x) the sum of (A) Current
Interest for that Class of Certificates for the immediately
preceding Distribution Date and (B) any unpaid Carryforward
Interest for such Class from previous Distribution Dates exceeds
(y) the actual amount distributed on such Class in respect of
interest on the immediately preceding Distribution Date and (ii)
interest on such amount for the related Accrual Period at the
applicable Pass-Through Rate.
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 Margin
: With respect to each Distribution
Date on or prior to the first possible Optional Termination Date,
0.270%, 0.230%, 0.400%, 0.340%, 0.540%, 0.660%, 0.750%, 1.300%, and
1.800%, for the Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4, Class M-1, Class M-2, Class M-3, Class M-4 and Class M-5
Certificates, respectively. With respect to each Distribution Date
following the first possible Optional Termination Date, 0.540%,
0.460%, 0.800%, 0.680%, 1.040%, 1.160%, 1.250%, 1.800% and 2.300%,
for the Class III-A-1, Class III-
A-2, Class III-A-3, Class III-A-4,
Class M-1, Class M-2, Class M-3, Class M-4 and Class M-5
Certificates, respectively.
Certificate Notional
Balance : With respect to
the Class X Certificates and any Distribution Date, the
Uncertificated Principal Balance of the REMIC I Regular Interests
(other than REMIC I Regular Interest I-LTP) for such Distribution
Date. As of the Closing Date, the Certificate Notional Balance of
the Class X Certificates is equal to $545,195,120.61.
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 or Class P Certificate and as of any
Distribution Date, the Initial Certificate Principal Balance of
such Certificate plus any Subsequent Recoveries added to the
Certificate Principal Balance pursuant to Section 5.05(f) less
(i) the sum of (a) 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 (b) with respect to any Class I-A-2, Class
II-A-2 or Class III-A-4 Certificate or any Class of Subordinate
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, plus (ii) with respect to
the Class I-A-2, Class II-A-2 or Class III-A-4 Certificates or
Subordinate Certificates, any Subsequent Recoveries added to the
Certificate Principal Balance of any such Certificate pursuant to
Section 5.05(d), in each case up to the amount of Applied Loss
Amounts but only to the extent that any such Applied Loss Amount
has not been paid to any Class of Certificates as a Deferred
Amount. With respect to the Class X Certificates and any date of
determination, the excess, if any, of (i) the then Aggregate Loan
Balance over (ii) the then aggregate Certificate Principal Balance
of the Publicly Offered Certificates. 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 I-A-1
Certificate : Any
Certificate designated as a “Class I-A-1 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 I-A-1 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class I-A-1 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the weighted
average Net Mortgage Rate of the Group I Mortgage Loans minus 0.55%
per annum. For federal income tax purposes, the equivalent of the
foregoing shall be expressed as the weighted average of the
Uncertificated REMIC I Pass-Through Rate on REMIC I Regular
Interest LTI-1GRP, weighted on the basis of the Uncertificated
Principal Balance of such REMIC I Regular Interest minus
0.55%.
Class I-A-2
Certificate : Any
Certificate designated as a “Class I-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 I-A-2 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class I-A-2 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the weighted
average Net Mortgage Rate of the Group I Mortgage Loans. For
federal income tax purposes, the equivalent of the foregoing shall
be expressed as the weighted average of the Uncertificated REMIC I
Pass-Through Rate on REMIC I Regular Interest LTI-1GRP, weighted on
the basis of the Uncertificated Principal Balance of such REMIC I
Regular Interest.
Class II-A-1
Certificate : Any
Certificate designated as a “Class II-A-1 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 II-A-1 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class II-A-1 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal (a) for the period
to and including the Distribution Date in June 2010, the lesser of
5.05% and the weighted average of the Net Mortgage Rates of the
Group II Mortgage Loans and (b) each Distribution Date thereafter,
the weighted average of the Net Mortgage Rates of the Group II
Mortgage Loans minus 0.60% per annum. For federal income tax
purposes, the equivalent of the foregoing shall be expressed as (a)
for the period to and including the Distribution Date in June 2010,
the lesser of 5.05% and the weighted average of the Uncertificated
REMIC I Pass-Through Rate on REMIC I Regular Interest LT1-2GRP,
weighted on the basis of the Uncertificated Principal Balance of
such REMIC I Regular Interest and (b) each Distribution Date
thereafter, the weighted average of the Uncertificated REMIC I
Pass-Through Rate on REMIC I Regular Interest LT1-2GRP, weighted on
the basis of the Uncertificated Principal Balance of such REMIC I
Regular Interest minus 0.60%.
Class II-A-2
Certificate : Any
Certificate designated as a “Class II-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 II-A-2 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class II-A-2 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the weighted
average Net Mortgage Rate of the Group II Mortgage Loans. For
federal income tax purposes, the equivalent of the foregoing shall
be expressed as the weighted average of the Uncertificated REMIC I
Pass-Through Rate on REMIC I Regular Interest LTI-2GRP, weighted on
the basis of the Uncertificated Principal Balance of such REMIC I
Regular Interest.
Class III-A-1
Certificate : Any
Certificate designated as a “Class III-A-1 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 III-A-1 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class III-A-1 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A)
on
or prior to the first possible
Optional Termination Date, 0.270% or (B) after the first possible
Optional Termination Date, 0.540%, (ii) the applicable Net Funds
Cap, (iii) the Maximum Interest Rate and (iv) the applicable Cap
Rate.
Class III-A-2
Certificate : Any
Certificate designated as a “Class III-A-2 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 III-A-2 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class III-A-2 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.230% or
(B) after the first possible Optional Termination Date, 0.460%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class III-A-3
Certificate : Any
Certificate designated as a “Class III-A-3 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 III-A-3 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class III-A-3 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.400% or
(B) after the first possible Optional Termination Date, 0.800%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class III-A-4
Certificate : Any
Certificate designated as a “Class III-A-4 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 III-A-4 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class III-A-4 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.340% or
(B) after the first possible Optional Termination Date, 0.680%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
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 II.
Class M-1 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.540% or
(B) after the first possible Optional Termination Date, 1.040%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class M-1 Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the sum of (i) the
Certificate Principal Balances of the Senior Certificates, in each
case, after giving effect to payments on such Distribution Date and
(ii) the Certificate Principal Balance of the Class M-1
Certificates immediately prior to such Distribution Date exceeds
(y) the lesser of (A) the product of (i) 89.90% and (ii) the
Aggregate Loan Balance for such Distribution Date and (B) the
amount, if any, by which (i) the Aggregate Loan Balance for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Loan Balance
as of the Cut-off Date.
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 II.
Class M-2 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.660% or
(B) after the first possible Optional Termination Date, 1.160%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class M-2 Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the sum of (i) the
Certificate Principal Balances of the Senior Certificates and the
Class M-1 Certificates, in each case, after giving effect to
payments on such Distribution Date and (ii) the Certificate
Principal Balance of the Class M-2 Certificates immediately prior
to such Distribution Date exceeds (y) the lesser of (A) the product
of (i) 93.20% and (ii) the Aggregate Loan Balance for such
Distribution Date and (B) the amount, if any, by which (i) the
Aggregate Loan Balance for such Distribution Date exceeds (ii)
0.50% of the Aggregate Loan Balance as of the Cut-off
Date.
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 II.
Class M-3 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus
(A) on or prior to the first possible Optional Termination
Date, 0.750% or (B) after the first possible Optional Termination
Date, 1.250%, (ii) the applicable Net Funds Cap, (iii) the Maximum
Interest Rate and (iv) the applicable Cap Rate.
Class M-3 Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the sum of (i) the
Certificate Principal Balances of the Senior Certificates, Class
M-1 Certificates and Class M-2 Certificates, in each case, after
giving effect to payments on such Distribution Date and (ii) the
Certificate Principal
Balance of the Class M-3
Certificates immediately prior to such Distribution Date exceeds
(y) the lesser of (A) the product of (i) 95.70% and (ii) the
Aggregate Loan Balance for such Distribution Date and (B) the
amount, if any, by which (i) the Aggregate Loan Balance for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Loan Balance
as of the Cut-off Date.
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 II.
Class M-4 Pass-Through
Rate : With respect to
each Distribution Date thereafter, a per annum rate equal to the
least of (i) the sum of One-Month LIBOR for that Distribution Date
plus (A) on or prior to the first possible Optional
Termination Date, 1.300% or (B) after the first possible Optional
Termination Date, 1.800%, (ii) the applicable Net Funds Cap, (iii)
the Maximum Interest Rate and (iv) the applicable Cap
Rate.
Class M-4 Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the sum of (i) the
Certificate Principal Balances of the Senior Certificates, Class
M-1 Certificates, Class M-2 Certificates and Class M-3
Certificates, in each case, after giving effect to payments on such
Distribution Date and (ii) the Certificate Principal Balance of the
Class M-4 Certificates immediately prior to such Distribution Date
exceeds (y) the lesser of (A) the product of (i) 96.90% and (ii)
the Aggregate Loan Balance for such Distribution Date and (B) the
amount, if any, by which (i) the Aggregate Loan Balance for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Loan Balance
as of the Cut-off Date.
Class M-5 Certificate
: Any Certificate designated as a
“Class M-5 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-5
Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class M-5 Pass-Through
Rate : With respect to
each Distribution Date thereafter, a per annum rate equal to the
least of (i) the sum of One-Month LIBOR for that Distribution Date
plus (A) on or prior to the first possible Optional
Termination Date, 1.800% or (B) after the first possible Optional
Termination Date, 2.300%, (ii) the applicable Net Funds Cap, (iii)
the Maximum Interest Rate and (iv) the applicable Cap
Rate.
Class M-5 Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the sum of (i) the
Certificate Principal Balances of the Senior Certificates, Class
M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates
and Class M-4 Certificates, in each case, after giving effect to
payments on such Distribution Date and (ii) the Certificate
Principal Balance of the Class M-5 Certificates immediately prior
to such Distribution Date exceeds (y) the lesser of (A) the product
of (i) 98.48% and (ii) the Aggregate Loan Balance for such
Distribution Date and (B) the amount, if
any, by which (i) the Aggregate Loan
Balance for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Loan Balance as of the Cut-off Date.
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
II.
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 as a
“Class R” 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 R Certificates as
set forth herein and evidencing the Class R-I Interest and Class
R-II Interest.
Class R-I Interest
: The uncertificated residual
interest in REMIC I.
Class R-II Interest
: The uncertificated residual
interest in REMIC II.
Class X Certificate
: Any Certificate designated as a
“Class X Certificate” on the face thereof, in the form
of Exhibit A-6 hereto, representing the right to its Percentage
Interest of distributions provided for the Class X Certificates as
set forth herein and evidencing a Regular Interest in REMIC
II.
Class X Distribution
Amount : With respect to
any Distribution Date and the Class X Certificates, the sum of (i)
the Excess Cap Payment, (ii) the Current Interest and Carryforward
Interest and (iii) any Overcollateralization Release Amount for
such Distribution Date remaining after payments pursuant to items 1
though 13 of Section 5.04(a)(iii); provided, however that on
and after the Distribution Date on which the Certificate Principal
Balances of the Publicly Offered Certificates have 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 (O) below, and
the denominator of which is the aggregate of the Uncertificated
Principal Balances of REMIC I Regular Interest LTI-AA, REMIC I
Regular Interest LTI-IA1, REMIC I Regular Interest LTI-IA2, REMIC I
Regular Interest LTI-IIA1, REMIC I Regular Interest LTI-IIA2, REMIC
I Regular Interest LTI-IIIA1, REMIC I Regular Interest LTI-IIIA2,
REMIC I Regular Interest LTI-IIIA3, REMIC I Regular Interest
LTI-IIIA4, REMIC I Regular Interest LTI-M1, REMIC I Regular
Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I Regular
Interest LTI-M4, REMIC I Regular Interest LTI-M5 and REMIC I
Regular Interest LTI-ZZ. 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 I Pass-Through Rate for REMIC I Regular
Interest LTI-AA minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-AA;
(B) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IA1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-IA1;
(C) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IA2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-IA2;
(D) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIA1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-IIA1;
(E) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIA2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-IIA2;
(F) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIIA1, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIIA1;
(G) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIIA2, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIIA2;
(H) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIIA3, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIIA3;
(I) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIIA4, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIIA4;
(J) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M1;
(K) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M2;
(L) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M3 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M3;
(M) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M4 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M4;
(N) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M5 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M5; and
(O) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-ZZ minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-ZZ.
Cleanup Call
: As defined in
Section 10.01.
Closing Date
: September 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
Servicer or the Master Servicer to offset a Prepayment Interest
Shortfall on a Mortgage Loan in accordance with this Agreement;
provided, however that the amount of Compensating Interest required
to be paid in respect of the Mortgage Loans shall not exceed the
Servicing Fee payable to the Servicer or, in the case of 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-AR5 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-AR5), 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-AR5) (or
for overnight deliveries, at 9062 Old Annapolis Road, Columbia,
Maryland 21045, Attention: Corporate Trust Services – Client
Manager (NAAC 2005-AR5)).
Corresponding
Certificate : With
respect to:
|
(i)
|
REMIC I Regular Interest LTI-IA1, the Class
I-A-1 Certificates;
|
|
(ii)
|
REMIC I Regular Interest LTI-IA2, the Class
I-A-2 Certificates;
|
|
(iii)
|
REMIC I Regular Interest LTI-IIA1, the Class
II-A-1 Certificates;
|
|
(iv)
|
REMIC I Regular Interest LTI-IIA2, the Class
II-A-2 Certificates;
|
|
(v)
|
REMIC I Regular Interest LTI-IIIA1, the Class
III-A-1 Certificates;
|
|
(vi)
|
REMIC I Regular Interest LTI-IIIA2, the Class
III-A-2 Certificates;
|
|
(vii)
|
REMIC I Regular Interest LTI-IIIA3, the Class
III-A-3 Certificates;
|
|
(viii)
|
REMIC I Regular Interest LTI-IIIA4, the Class
III-A-4 Certificates;
|
|
(ix)
|
REMIC I Regular Interest LTI-M1, the Class M-1
Certificates;
|
|
(x)
|
REMIC I Regular Interest LTI-M2, the Class M-2
Certificates;
|
|
(xi)
|
REMIC I Regular Interest LTI-M3, the Class M-3
Certificates;
|
|
(xii)
|
REMIC I Regular Interest LTI-M4, the Class M-4
Certificates;
|
|
(xiii)
|
REMIC I Regular Interest LTI-M5, the Class M-5
Certificates; and
|
|
(xiv)
|
REMIC I Regular Interest LTI-P, the Class P
Certificates.
|
Credit Risk Management
Agreement : The agreement
between the Credit Risk Manager and the Servicer and/or Master
Servicer, dated as of September 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 : 0.01% per
annum.
Credit Risk Manager
: Risk Management Group, LLC, a New
York limited liability company, and its successors and
assigns.
Current Interest
: With respect to any Class of
Publicly Offered Certificates and any Distribution Date, the amount
of interest accruing at the applicable Pass-Through Rate on the
related Certificate Principal Balance during the related Accrual
Period; provided, that as to each Class of Publicly Offered
Certificates, the Current Interest will be reduced by a pro rata
portion of any Net Interest Shortfalls to the extent not covered by
excess interest. No Current Interest will be payable with respect
to any Class of Publicly Offered Certificates after the
Distribution Date on which the outstanding Certificate Principal
Balance of such Certificate has been reduced to zero.
Custodial Account
: The account established and
maintained by the Servicer with respect to receipts on the Mortgage
Loans and related REO Properties in accordance with
Section 3.26(b).
Custodial Agreements
: The JPMorgan Custodial Agreement
and the Wells Fargo Custodial Agreement.
Custodians
: JPMorgan and Wells
Fargo.
Cut-off Date
: September 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.
Deferred Amount
: With respect to the Class I-A-2,
Class II-A-2 or Class III-A-4 Certificates or any Class of
Subordinate Certificates and any Distribution Date, the amount by
which (x) the aggregate of the Applied Loss Amounts previously
applied in reduction of the Certificate Principal Balance thereof
exceeds (y) the aggregate of amounts previously paid in
reimbursement thereof and the amount by which the Certificate
Principal Balance of any such Class has been increased due to the
collection of Subsequent Recoveries.
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.
Delinquency Rate
: With respect to the Mortgage Loans
and any calendar month will be, generally, the fraction, expressed
as a percentage, the numerator of which is the Aggregate Loan
Balance of all Mortgage Loans sixty (60) or more days delinquent
(including all Mortgage Loans in bankruptcy or foreclosure and all
REO Properties) as of the close of business on the last day of such
month, and the denominator of which is the Aggregate Loan Balance
as of the close of business on the last day of such
month.
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 fifteenth (15 th ) day of the month of such
Distribution Date or, if such 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 in the name of the Trustee for the benefit of the
Certificateholders and designated “HSBC Bank USA, National
Association, in trust for registered holders of Nomura Asset
Acceptance Corp., Mortgage Pass-Through Certificates, Series
2005-AR5”. 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 day is not a Business Day, the next
succeeding Business Day, commencing in October 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
: With respect to any Distribution
Date, 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.
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.
Escrow Account
: Shall mean the account or accounts
maintained by the Servicer pursuant to Section 3.29. Each
Escrow Account shall be an Eligible Account.
ERISA : The Employee Retirement Income Security Act of
1974, as amended.
ERISA Restricted
Certificate : Each of the
Class X, Class P and Residual Certificates.
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 related Cap Contract, over (2) the amount of the
Basis Risk Shortfalls attributable to the Class III-A-1, Class
III-A-2 or Class III-A-3 Certificates, as applicable, 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.
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 or the
Master Servicer pursuant to or as contemplated by
Section 2.03(c) or Section 10.01), a determination made
by the Servicer pursuant to this Agreement that all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries
which the Servicer, in its reasonable good faith
judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer
shall maintain records of each Final Recovery Determination made
thereby.
FIRREA : The Financial Institutions Reform, Recovery,
and Enforcement Act of 1989, as amended.
Fitch : Fitch Ratings.
Freddie Mac
: Federal Home Loan Mortgage
Corporation, or any successor thereto.
Gross Margin
: With respect to each Mortgage
Loan, the fixed percentage set forth in the related Mortgage Note
that is added to the Index on each Adjustment Date in accordance
with the terms of the related Mortgage Note used to determine the
Mortgage Rate for such Mortgage Loan.
Group I Certificates
: The Class I-A-1 Certificates and
Class I-A-2 Certificates.
Group I Allocation
Amount :
With respect to any Distribution
Date, the product of the Senior Principal Payment Amount for that
Distribution Date and a fraction the numerator of which is the
Principal Remittance Amount derived from the Group I Mortgage Loans
and the denominator of which is the Principal Remittance Amount, in
each case for that Distribution Date.
Group I Excess Interest
Amount :
With respect to any Distribution
Date, the product of the Monthly Excess Interest required to be
distributed on that Distribution Date pursuant to
Section 5.04(iii)(1)(A) and a fraction the numerator of which
is the Principal Remittance Amount derived from the Group I
Mortgage Loans and the denominator of which is the Principal
Remittance Amount, in each case for that Distribution
Date.
Group I Mortgage Loans
: Those Mortgage Loans identified on
the Mortgage Loan Schedule as Group I Mortgage Loans.
Group II Certificates
: The Class II-A-1 Certificates and
Class II-A-2 Certificates.
Group II Allocation
Amount :
With respect to any Distribution
Date, the product of the Senior Principal Payment Amount for that
Distribution Date and a fraction the numerator of which is the
Principal Remittance Amount derived from the Group II Mortgage
Loans and the denominator of which is the Principal Remittance
Amount, in each case for that Distribution Date.
Group II Excess Interest
Amount :
With respect to any Distribution
Date, the product of the Monthly Excess Interest required to be
distributed on that Distribution Date pursuant to
Section 5.04(iii)(1)(A) and a fraction the numerator of which
is the Principal Remittance Amount derived from the Group II
Mortgage Loans and the denominator of which is the Principal
Remittance Amount, in each case for that Distribution
Date.
Group II Mortgage
Loans : Those Mortgage
Loans identified on the Mortgage Loan Schedule as Group II Mortgage
Loans.
Group III Certificates
: The Class III-A-1, Class III-A-2,
Class III-A-3 and Class III-A-4 Certificates.
Group III Allocation
Amount :
With respect to any Distribution
Date, the product of the Senior Principal Payment Amount for that
Distribution Date and a fraction the numerator of which is the
Principal Remittance Amount derived from the Group III Mortgage
Loans and the denominator of which is the Principal Remittance
Amount, in each case for that Distribution Date.
Group III Excess Interest
Amount :
With respect to any Distribution
Date, the product of the Monthly Excess Interest required to be
distributed on that Distribution Date pursuant to
Section 5.04(iii)(1)(A) and a fraction the numerator of which
is the Principal Remittance Amount derived from the Group III
Mortgage Loans and the denominator of which is the Principal
Remittance Amount, in each case for that Distribution
Date.
Group III Mortgage
Loans : Those Mortgage
Loans identified on the Mortgage Loan Schedule as Group III
Mortgage Loans.
Indemnified Persons
: The Trustee, the Servicer
(including any successor to the Servicer), 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.
Index : As of any Adjustment Date, the index
applicable to the determination of the Mortgage Rate on each
Mortgage Loan which will generally be based on One-Month LIBOR,
Six-Month LIBOR or One-Year LIBOR.
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, the
Servicer 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, 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 Determination
Date : Shall mean the
second LIBOR Business Day preceding the commencement of each
Accrual Period.
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 Servicer or the Master Servicer
pursuant to this 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.
JPMorgan : JPMorgan Chase Bank, N.A., a national banking
association, in its capacity as a Custodian
JPMorgan Custodial
Agreement : The Custodial
Agreement dated as of September 1, 2005 among JPMorgan, the
Servicer and the Trustee
Last Scheduled Distribution
Date : With respect to
the Certificates, the Distribution Date in October 2035.
Latest Possible Maturity
Date : The second
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
and REMIC II 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.
LIBOR Determination
Date : The second LIBOR
Business Day before the first day of the related Accrual
Period.
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 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 and Servicing
Advances and all expenses of liquidation, including property
protection expenses and foreclosure and sale costs, including court
and reasonable attorneys fees.
Loan Group
: Any of Loan Group I, Loan Group
II, Loan Group III. “Loan Group I” refers to the Group
I Mortgage Loans, “Loan Group II” refers to the Group
II Mortgage Loans and “Loan Group III” refers to the
Group III Mortgage Loans.
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.
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 Offered
Certificates and any Distribution Date, a per annum rate equal to
two (2) times the weighted average of the Uncertificated REMIC I
Pass-Through Rates for REMIC I Regular Interest LTI-IA1, REMIC I
Regular Interest LTI-IA2, REMIC I Regular Interest LTI-IIA1, REMIC
I Regular Interest LTI-IIA2, REMIC I Regular Interest LTI-IIIA1,
REMIC I Regular Interest LTI-IIIA2, REMIC I Regular Interest
LTI-IIIA3, REMIC I Regular Interest LTI-IIIA4, REMIC I Regular
Interest LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I Regular
Interest LTI-M3, REMIC I Regular Interest LTI-M4, REMIC I Regular
Interest LTI-M5 and REMIC I Regular Interest LTI-ZZ, with the per
annum rate on each such REMIC I Regular Interest (other than REMIC
I Regular Interest LTI-ZZ) subject to a cap equal to the
Pass-Through Rate on the Corresponding Certificate for the purpose
of this calculation; and with the per annum rate on REMIC I Regular
Interest LTI-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 I Pass-Through Rate and the
related cap with respect to each such REMIC I Regular Interest
(other than REMIC I Regular Interest LTI-IA1, REMIC I Regular
Interest LTI-IA2, REMIC I Regular Interest LTI-IIA1, REMIC I
Regular Interest LTI-IIA2 and REMIC I Regular Interest LTI-ZZ)
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 thirty (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 Servicing
Compensation : As defined
in Section 4.12.
Master Servicer
Default : One or more of
the events described in Section 8.01(b).
Maximum Interest Rate
: With respect to any Distribution
Date, the related Accrual Period and the Group III Certificates, an
annual rate equal to the weighted average of the Maximum Mortgage
Interest Rates of the Mortgage Loans in Loan Group III minus the
weighted average expense fee rate of the Mortgage Loans in Loan
Group III. With respect to any Distribution Date, the related
Accrual Period and the Subordinate Certificates, an annual rate
equal to the weighted average of the Maximum Mortgage Interest
Rates of the Mortgage Loans minus the weighted average expense fee
rate of the Mortgage Loans. The calculation of the Maximum Interest
Rate will be based on a 360-day year and the actual number of days
elapsed during the related Accrual Period.
Maximum Mortgage Interest
Rate : With respect to
each Mortgage Loan, the percentage set forth in the related
Mortgage Note as the maximum interest rate.
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.
MIN : The Mortgage Identification Number for
Mortgage Loans registered with MERS on the MERS®
System.
Minimum Mortgage Interest
Rate : With respect to
each Mortgage Loan, the percentage set forth in the related
Mortgage Note as the minimum Mortgage Rate thereunder.
Minimum Servicing
Requirements : With
respect to a successor Servicer appointed pursuant to Section
7.06(a) hereunder:
(i) the
proposed successor Servicer is (1) an affiliate of the Master
Servicer that services mortgage loans similar to the Mortgage Loans
in the jurisdictions in which the related Mortgaged Properties are
located or (2) the proposed successor Servicer has a rating of at
least “Above Average” by S&P and either a rating of
at least “RPS2” by Fitch or a rating of at least
“SQ2” by Moody’s; and
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(ii)
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the proposed successor Servicer has
a net worth of at least $25,000,000.
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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 Excess
Cashflow : With respect
to any Distribution Date, means the sum of (a) the Monthly Excess
Interest, (b) the Overcollateralization Release Amount, if any, for
such Distribution Date, and (c) the Principal Remittance Amount
remaining following payments of the Principal Payment Amount to the
Senior Certificates and Subordinate Certificates.
Monthly Excess
Interest : With respect
to any Distribution Date, the excess of (x) the Interest Remittance
Amount for such Distribution Date over (y) the sum of Current
Interest and Carryforward Interest on the Senior Certificates and
Subordinate Certificates for such Distribution Date.
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 September 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 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, setting forth the following
information with respect to each Mortgage Loan:
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(i)
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the loan number;
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(iii)
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the Mortgage Rate in effect as of
the Cut-off Date;
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(iv)
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the Servicing Fee Rate;
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(v)
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the Net Mortgage Rate in effect as
of the Cut-off Date;
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(vi)
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the maturity date;
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(vii)
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the original principal
balance;
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(viii)
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the Cut-off Date Principal
Balance;
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(ix)
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the original term;
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(x)
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the remaining term;
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(xi)
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the property type;
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(xii)
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with respect to each MOM Loan, the
related MIN;
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(xiii)
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the Custodian;
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(xiv) 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;
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(xv)
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the first Adjustment
Date;
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(xvi)
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the Gross Margin;
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(xvii) the Maximum
Mortgage Interest Rate under the terms of the Mortgage
Note;
(xviii) the
Minimum Mortgage Interest Rate under the terms of the Mortgage
Note;
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(xix)
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the Periodic Rate Cap;
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(xx)
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the first Adjustment Date
immediately following the Cut-off Date;
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(xxi)
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the Index;
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(xxii)
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the related Loan Group;
and
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(xxiii)
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the applicable Servicer.
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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 which rate (A) as of any date of determination
until the first Adjustment Date following the Cut-off Date shall be
the rate set forth in the Loan Schedule as the Mortgage Rate in
effect immediately following the Cut-off Date and (B) as of any
date of determination thereafter shall be the rate as adjusted on
the most recent Adjustment Date equal to the sum, rounded to the
nearest 0.125% as provided in the Mortgage Note, of the Index, as
most recently available as of a date prior to the Adjustment Date
as set forth in the related Mortgage Note, plus the related Gross
Margin; provided that the Mortgage Rate on such Mortgage Loan on
any Adjustment Date shall never be more than the lesser of (i) the
sum of the Mortgage Rate in effect immediately prior to the
Adjustment Date plus the related Periodic Rate Cap, if any, and
(ii) the related Maximum Mortgage Interest Rate, and shall never be
less than the greater of (i) the Mortgage Rate in effect
immediately prior to the Adjustment Date less the Periodic Rate
Cap, if any, and (ii) the related Minimum Mortgage Interest Rate.
With respect to each Mortgage Loan that becomes an REO Property, as
of any date of determination, the annual rate determined in
accordance with the immediately preceding sentence as of the date
such Mortgage Loan became an REO Property.
Mortgaged Property
: The underlying property securing a
Mortgage Loan.
Mortgagor : The obligor on a Mortgage Note.
Net Funds Cap
: With respect to any Distribution
Date for the Group III Certificates, (a) a fraction expressed as a
percentage, the numerator of which is the product of (1) the
Optimal Interest Remittance Amount for Loan Group III and such
Distribution Date and (2) twelve (12), and the denominator of which
is the Aggregate Loan Group Balance for Loan Group III for the
immediately preceding Distribution Date, multiplied by (b) a
fraction, expressed as a percentage, the numerator of which is
thirty (30) and the denominator of which is the actual number of
days elapsed in the immediately preceding Accrual Period. For
federal income tax purposes, the equivalent of the foregoing shall
be expressed as the weighted average of the Uncertificated REMIC I
Pass-Through Rate on REMIC I Regular Interest LTI-3GRP, weighted on
the basis of the Uncertificated Principal Balance of such REMIC I
Regular Interest.
With respect to any Distribution
Date and the Subordinate Certificates, (a) a fraction expressed as
a percentage, the numerator of which is the product of (1) the
Optimal Interest Remittance Amount for such Distribution Date and
(2) twelve (12), and the denominator of which is the Aggregate Loan
Group Balance of Loan Group I, Loan Group II and Loan Group III for
the immediately preceding Distribution Date, weighted, in each
case, on the basis of the
Aggregate Loan Group Balance of Loan
Group I, Loan Group II and Loan Group III for the immediately
preceding Distribution Date, less the Certificate Principal Balance
of the related Senior Certificates, multiplied by (b) a fraction,
expressed as a percentage, the numerator of which is thirty (30)
and the denominator of which is the actual number of days elapsed
in the immediately preceding Accrual Period. For federal income tax
purposes, the equivalent of the foregoing shall be expressed as the
weighted average of the Uncertificated REMIC I Pass-Through Rates
on REMIC I Regular Interest LTI-1SUB, REMIC I Regular Interest
LTI-2SUB and REMIC I Regular Interest LTI-3SUB in each case subject
to a cap and a floor equal to the weighted average Net Mortgage
Rate of the Group I Mortgage Loans, Group II Mortgage Loans and
Group III Mortgage Loans, respectively, weighted in each case on
the basis of the Uncertificated Principal Balance of each such
REMIC I Regular Interest.
Net Interest
Shortfalls : Shall mean
Interest Shortfalls net of payments by the Servicer or the Master
Servicer in respect of Compensating Interest.
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 and (iii) the rate at which the fee payable to
any provider of lender-paid mortgage insurance is calculated, if
applicable.
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
Servicer pursuant to this Agreement or the Master Servicer as
Successor Servicer, that, in the good faith judgment of the
Servicer 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 Group III
Certificates and the Subordinate 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 3.84063% per annum.
One-Year LIBOR:
The per annum rate equal to the
average of interbank offered rates for one-year U.S.
dollar-denominated deposits in the London market based on
quotations of major banks as published in The Wall Street Journal
and most recently available as of the time specified in the related
Mortgage Note
Opinion of Counsel
: A written opinion of counsel, who
may be counsel for the Seller, the Master Servicer, the Depositor
or the 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 Depositor and the Servicer, (ii) not
have any direct financial interest in the Seller, the Depositor,
the Master Servicer or the Servicer or in any affiliate of any of
them, and (iii) not be connected with the Seller, the Depositor,
the Master Servicer or the Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director or person
performing similar functions.
Optimal Interest Remittance
Amount : With respect to
any Distribution Date and (A) the Group III Certificates, will be
equal to the excess of (i) the product of (1)(x) the weighted
average Net Mortgage Rates of the Group III Mortgage Loans as of
the first day of the related Due Period divided by (y) 12 and (2)
the Aggregate Loan Balance of the Group III Mortgage Loans for the
immediately preceding Distribution Date, over (ii) any expenses
that reduce the Interest Remittance Amount that did not arise as a
result of a default or delinquency of the Group III Mortgage Loans
or were not taken into account in computing the expense fee rate,
and (B) the Subordinate Certificates, will be equal to the excess
of (i) the product of (1)(x) the weighted average Net Mortgage
Rates of the Mortgage Loans as of the first day of the related Due
Period divided by (y) 12 and (2) the Aggregate Loan Balance of the
Mortgage Loans for the immediately preceding Distribution Date,
over (ii) any expenses that reduce the Interest Remittance Amount
that did not arise as a result of a default or delinquency of the
Mortgage Loans or were not taken into account in computing the
expense fee rate.
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
Loan Balance over (b) the aggregate Certificate Principal Balance
of the Publicly Offered Certificates on such Distribution Date
(after taking into account the payment of 100% of the Principal
Remittance Amount on such Distribution Date).
Overcollateralization Deficiency
Amount : With respect to
any Distribution Date, the amount, if any, by which (x) the
Targeted Overcollateralization Amount for such Distribution Date
exceeds (y) the Overcollateralization Amount for such Distribution
Date, calculated for this purpose after giving effect to the
reduction on such Distribution Date of the aggregate Certificate
Principal Balance of the Publicly Offered Certificates resulting
from the payment of the Principal Remittance Amount on such
Distribution Date, but prior to allocation of any Applied Loss
Amount on such Distribution Date.
Overcollateralization Release
Amount : With respect to
any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the amount, if any, by
which (1) the Overcollateralization Amount for such date exceeds
(2) the Targeted 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
: The Class I-A-1, Class I-A-2,
Class II-A-1, Class II-A-2, Class III-A-1, Class III-A-2, Class
III-A-3, Class III-A-4, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5 and Class X Pass-Through Rate, as applicable.
Payahead : Any Scheduled Payment intended by the related
Mortgagor to be applied in a Due Period subsequent to the Due
Period in which such payment was received.
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.
Periodic Rate Cap
: With respect the Adjustment Date
for an Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note, which is the maximum amount by which the Mortgage
Rate for such Mortgage Loan may increase or decrease (without
regard to the Maximum Mortgage Interest Rate or the Minimum
Mortgage Interest Rate) on such Adjustment Date from the Mortgage
Rate in effect immediately prior to such Adjustment
Date.
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;
(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 (including the prepayment
charge summary attached thereto). The Depositor shall deliver or
cause the delivery of the Prepayment Charge Schedule to the
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:
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(i)
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the Mortgage Loan identifying
number;
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(ii)
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a code indicating the type of
Prepayment Charge;
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(iii)
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the date on which the first Monthly
Payment was due on the related Mortgage Loan;
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(iv)
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the term of the related Prepayment
Charge;
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(v)
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the original Stated Principal
Balance of the related Mortgage Loan; and
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(vi)
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the Stated Principal Balance of the
related Mortgage Loan as of the Cut-off Date.
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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
Credit Risk Management Fee and (c) the fee payable to any provider
of lender-paid mortgage insurance, if any.
Prepayment Period
: With respect to any Distribution
Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
Principal Payment
Amount: With respect to
each Distribution Date, the Principal Remittance Amount for such
date minus the Overcollateralization Release Amount, if any, for
such Distribution Date.
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 Servicer in
accordance with the terms of the related Mortgage Note.
Principal Remittance
Amount : With respect to
any Distribution Date, (i) the sum, without duplication, of (a) the
principal portion of all Scheduled Payments on the Mortgage Loans
due during the related Due Period whether or not received on or
prior to the related Determination Date, (b) the principal portion
of all unscheduled collections (other than Payaheads) including
Insurance Proceeds, Condemnation Proceeds, Subsequent Recoveries
and all full and partial Principal Prepayments exclusive of
prepayment charges or penalties collected during the related
Prepayment Period, to the extent applied as recoveries of principal
on the Mortgage Loans, (c) the Stated Principal Balance of each
Mortgage Loan that was repurchased by the Seller during the related
Prepayment Period pursuant to Sections 2.02, 2.03 and 3.24,
(d) the aggregate of all Substitution Adjustment Amounts received
during the related Prepayment Period 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 on the
Mortgage Loans paid by the Master Servicer pursuant to
Section 10.01, (f) all 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 principal), in each case to the
extent remitted by the Servicer to the Distribution Account
pursuant to this Agreement and (g) the principal portion of
Payaheads previously received of the Mortgage Loans and intended
for application in the related Due Period minus (ii) all amounts
required to be reimbursed by the Trust pursuant to
Sections 4.02, 4.05, 4.07, 5.10 and 9.05 or as otherwise set
forth in this Agreement or any Custodial Agreement.
Private Certificate
: Each of the Class X, Class P and
Class R Certificates.
Prospectus Supplement
: The Prospectus Supplement dated
September 29, 2005 relating to the offering of the Publicly Offered
Certificates.
Publicly Offered
Certificates : Any
Certificates other than the Private 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, 2.03 or 3,24 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, Servicing
Advances and Advances payable to the 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 Moody’s and S&P.
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 Servicer pursuant to this Agreement. To the extent the
Servicer receives Subsequent Recoveries with respect to any
Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent that Subsequent
Recoveries are applied to reduce the Certificate Principal Balance
of any Class of Certificates on any Distribution Date.
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 the
Servicer receives Subsequent Recoveries with respect to any
Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such 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 Group III Certificates and the Subordinate
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 Group III
Certificates and the Subordinate Certificates and any Distribution
Date, so long as the such 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 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 the Servicer.
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 Group III Certificates and Subordinate 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 Group III Certificates and Subordinate Certificates for such
Accrual Period.
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 on the Mortgage Loans made before the
Cut-off Date, (iii) the Basis Risk Shortfall Reserve Fund and (iv)
the Cap Contracts.
REMIC I 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 I
Pass-Through Rate for REMIC I Regular Interest LTI-AA minus the
Marker Rate, divided by (b) 12.
REMIC I Marker Allocation
Percentage : 0.50% of any
amount payable or loss attributable from the Mortgage Loans, which
shall be allocated to REMIC I Regular Interest LTI-AA, REMIC I
Regular Interest LTI-IA1, REMIC I Regular Interest LTI-IA2, REMIC I
Regular Interest LTI-IIA1, REMIC I Regular Interest LTI-IIA2, REMIC
I Regular Interest LTI-IIIA1, REMIC I Regular Interest LTI-IIIA2,
REMIC I Regular Interest LTI-IIIA3, REMIC I Regular Interest
LTI-IIIA4, REMIC I Regular Interest LTI-M1, REMIC I Regular
Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I Regular
Interest LTI-M4, REMIC I Regular Interest LTI-M5 and REMIC I
Regular Interest LTI-ZZ.
REMIC I Overcollateralization
Amount : With respect to
any date of determination, (i) 0.50% of the aggregate
Uncertificated Principal Balances of the REMIC I Regular Interests
minus (ii) the aggregate of the Uncertificated Principal Balances
of REMIC I Regular Interest LTI-IA1, REMIC I Regular Interest
LTI-IA2, REMIC I Regular Interest LTI-IIA1, REMIC I Regular
Interest LTI-IIA2, REMIC I Regular Interest LTI-IIIA1, REMIC I
Regular Interest LTI-IIIA2, REMIC I Regular Interest LTI-IIIA3,
REMIC I Regular Interest LTI-IIIA4, REMIC I Regular Interest
LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I Regular Interest
LTI-M3, REMIC I Regular Interest LTI-M4, REMIC I Regular Interest
LTI-M5 and REMIC I Regular Interest LTI-P, in each case as of such
date of determination.
REMIC I Principal Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to (a) the product of (i)
50% of 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 I Regular Interest
LTI-IA1, REMIC I Regular Interest LTI-IA2, REMIC I Regular Interest
LTI-IIA1, REMIC I Regular Interest LTI-IIA2, REMIC I Regular
Interest LTI-IIIA1, REMIC I Regular Interest LTI-IIIA2, REMIC I
Regular Interest LTI-IIIA3, REMIC I Regular Interest LTI-IIIA4,
REMIC I Regular Interest LTI-M1, REMIC I Regular Interest LTI-M2,
REMIC I Regular Interest LTI-M3, REMIC I Regular Interest LTI-M4
and REMIC I Regular Interest LTI-M5 and the denominator of which is
the aggregate of the Uncertificated Principal Balances of REMIC I
Regular Interest LTI-IA1, REMIC I Regular Interest LTI-IA2, REMIC I
Regular Interest LTI-IIA1, REMIC I Regular Interest LTI-IIA2, REMIC
I Regular Interest LTI-IIIA1, REMIC I Regular Interest LTI-IIIA2,
REMIC I Regular Interest LTI-IIIA3, REMIC I Regular Interest
LTI-IIIA4, REMIC I Regular Interest LTI-M1, REMIC I Regular
Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I Regular
Interest LTI-M4, REMIC I Regular Interest LTI-M5 and REMIC I
Regular Interest LTI-ZZ.
REMIC I Regular
Interests : REMIC I
Regular Interest LTI-AA, REMIC I Regular Interest LTI-IA1, REMIC I
Regular Interest LTI-IA2, REMIC I Regular Interest LTI-IIA1, REMIC
I Regular Interest LTI-IIA2, REMIC I Regular Interest LTI-IIIA1,
REMIC I Regular Interest LTI-IIIA2, REMIC I Regular Interest
LTI-IIIA3, REMIC I Regular Interest LTI-IIIA4, REMIC I Regular
Interest LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I Regular
Interest LTI-M3, REMIC I Regular Interest LTI-M4, REMIC I Regular
Interest LTI-M5, REMIC I Regular Interest LTI-ZZ, REMIC I Regular
Interest LTI-P, REMIC I Regular Interest LTI-1SUB, REMIC I Regular
Interest LTI-1GRP, REMIC I Regular Interest LTI-2SUB, REMIC I
Regular Interest LTI-2GRP, REMIC I Regular Interest LTI-3SUB, REMIC
I Regular Interest LTI-3GRP and REMIC I Regular Interest
LTI-XX.
REMIC I Regular Interest
LTI-AA: 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-AA 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-IA1 : 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-IA1
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-IA2 : 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-IA2 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-IIA1: 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-IIA1 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-IIA2: 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-IIA2 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-IIIA1: 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-IIIA1 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-IIIA2: 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-IIIA2 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-IIIA3: 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-IIIA3 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-IIIA4: 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-IIIA4 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-M1 : 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-M1 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-M2 : 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-M2 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-M3 : 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-M3 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-M4 : 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-M4 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-M5 : 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-M5 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-1SUB : 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-1SUB 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-1GRP : 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-1GRP 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-2SUB : 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-2SUB 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-2GRP : 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-2GRP 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-3SUB : 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-3SUB 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-3GRP : 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-3GRP 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 Interest
LTI-XX : 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-XX 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-ZZ : 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-ZZ 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-ZZ
Maximum Interest Deferral Amount : With respect to any Distribution Date, the
excess of (i) accrued interest at the Uncertificated REMIC I
Pass-Through Rate applicable to REMIC I Regular Interest LTI-ZZ for
such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LTI-ZZ minus the
REMIC I Overcollateralization Amount, in each case for such
Distribution Date, over (ii) the Uncertificated Accrued Interest on
REMIC I Regular Interest LTI-IA1, REMIC I Regular Interest LTI-IA2,
REMIC I Regular Interest LTI-IIA1, REMIC I Regular Interest
LTI-IIA2, REMIC I Regular Interest LTI-IIIA1, REMIC I Regular
Interest LTI-IIIA2, REMIC I Regular Interest LTI-IIIA3, REMIC I
Regular Interest LTI-IIIA4, REMIC I Regular Interest LTI-M1, REMIC
I Regular Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I
Regular Interest LTI-M4 and REMIC I Regular Interest LTI-M5 for
such Distribution Date, with the rate on each such REMIC I Regular
Interest subject to a cap equal to the related Pass-Through
Rate.
REMIC I Sub WAC Allocation
Percentage : 0.50% of any
amount payable or loss attributable from the Mortgage Loans, which
shall be allocated to REMIC I Regular Interest LTI-1SUB, REMIC I
Regular Interest LTI-1GRP, REMIC I Regular Interest LTI-2SUB, REMIC
I Regular Interest LTI-2GRP, REMIC I Regular Interest LTI-3SUB,
REMIC I Regular Interest LTI-3GRP and REMIC I Regular Interest
LTI-XX.
REMIC I Subordinated Balance
Ratio : The ratio among
the Uncertificated Principal Balances of each REMIC I Regular
Interest ending with the designation “SUB”, equal to
the ratio between, with respect to each such REMIC I Regular
Interest, the excess of (x) the aggregate Stated Principal Balance
of the Group I Mortgage Loans, Group II Mortgage Loans or Group III
Mortgage Loans, as applicable over (y) the current Certificate
Principal Balance of the related Senior Certificates.
REMIC I Targeted
Overcollateralization Amount : 0.50% of the Targeted Overcollateralization
Amount.
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 the REMIC II Certificateholders
pursuant to Section 2.07, and all amounts deposited therein,
with respect to which a separate REMIC election is to be
made.
REMIC II Certificate
: Any Regular Certificate or Class R
Certificate.
REMIC II
Certificateholder : The
Holder of any REMIC II 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
: Any REMIC I 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 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 related 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 an adjustable 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) be secured by a first lien on the
related Mortgaged Property; (vii) constitute the same occupancy
type as the Deleted Mortgage Loan or be owner occupied; (viii) have
a Maximum Mortgage Interest Rate not less than the Maximum Mortgage
Interest Rate on the Deleted Loan; (ix) have a Minimum Mortgage
Interest Rate not less than the Minimum Mortgage Interest Rate of
the Deleted Loan; (x) have a Gross Margin equal to the Gross Margin
of the Deleted Loan; (xi) have a next Adjustment Date not more than
two months later than the next Adjustment Date on the Deleted Loan;
and (xii) 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.
Residual Certificates
: The Class R
Certificates.
Responsible Officer
: With respect to the Trustee and
the 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 the Securities Administrator specified
by the Trustee or the Securities Administrator, as the case may be,
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.
Rolling Three Month Delinquency
Rate : With respect to
any Distribution Date and the Mortgage Loans will be the fraction,
expressed as a percentage, equal to the average of the Delinquency
Rates for each of the three (or one and two, in the case of the
first and second Distribution Dates) immediately preceding
months.
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 I-A-1, Class I-A-2,
Class II-A-1, Class II-A-2, Class III-A-1, Class III-A-2, Class
III-A-3 and Class III-A-4 Certificates.
Senior Enhancement
Percentage : With respect
to any Distribution Date will be the fraction, expressed as a
percentage, the numerator of which is the sum of the aggregate
Certificate Principal Balance of the Subordinate Certificates and
the Overcollateralization Amount, in each case after giving effect
to payments on such Distribution Date (assuming no Trigger Event is
in effect), and the denominator of which is the Aggregate Loan
Balance for such Distribution Date.
Senior Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the Certificate Principal
Balances of the Senior Certificates, in each case, immediately
prior to such Distribution Date exceed (y) the lesser of (A) the
product of (i) 79.00% and (ii) the Aggregate Loan Balance for such
Distribution Date and (B) the amount, if any, by which (i) the
Aggregate Loan Balance for such Distribution Date exceeds (ii)
0.50% of the Aggregate Loan Balance as of the Cut-off
Date.
Servicer : Shall mean GMAC Mortgage Corporation 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 the Servicer in respect of any waived Prepayment
Charges pursuant to Section 3.01.
Servicer’s
Assignee : As defined in
Section 5.01(b)(ii)
Servicing Advances
: All customary, reasonable and
necessary “out of pocket” costs and expenses (including
reasonable legal fees) incurred in the performance by the 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 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
: Either 0.25% per annum or 0.375%
per annum per Mortgage Loan, as specifically provided on the
Mortgage Loan Schedule.
Servicing Officer
: Any officer of the 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 to the Master
Servicer, the Securities Administrator the Trustee and the
Depositor on the Closing Date, as such list may from time to time
be amended.
Six-Month LIBOR
: The per annum rate equal to the
average of interbank offered rates for Six-Month U.S.
dollar-denominated deposits in the London market based on
quotations of major banks as published in The Wall Street Journal
and most recently available as of the time specified in the related
Mortgage Note.
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
Servicer as recoveries of principal in accordance with
Section 3.09 of this Agreement with respect to such Mortgage
Loan, that were received by the Servicer as of the close of
business on the last day of the Prepayment Period related to such
Distribution Date and (iii) any Realized Losses on such Mortgage
Loan incurred 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 October 2008 and (y) the first Distribution
Date on which the Senior Enhancement Percentage (calculated for
this purpose only after taking into account distributions of
principal on the Mortgage Loans, but prior to any distributions to
the holders of the Publicly Offered Certificates on such
Distribution Date) is greater than or equal to 21.00%.
Subordinate
Certificates : Shall
mean, collectively, the Class M-1, Class M-2, Class M-3, Class M-4
and Class M-5 Certificates.
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
the 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 the Servicer appointed pursuant to Section 8.02
of this Agreement after the occurrence of a Servicer Default or
upon the resignation of the Servicer pursuant to this
Agreement.
Targeted Overcollateralization
Amount : With respect to
any Distribution Date prior to the Stepdown Date, approximately
0.76% of the Aggregate Loan Balance as of the Cut-off Date; with
respect to any distribution date on or after the Stepdown Date and
with respect to which a Trigger Event is not in effect, the greater
of (a) 1.52% of the Aggregate Loan Balance for such distribution
date, or (b) 0.50% of the Aggregate Loan Balance as of the Cut-off
Date; with respect to any distribution date on or after the
Stepdown Date with respect to which a Trigger Event is in effect,
the Targeted Overcollateralization Amount for such distribution
date will be equal to the Targeted Overcollateralization Amount for
the distribution date immediately preceding such distribution
date.
Tax Matters Person
: The person designated as
“tax matters person” in the manner provided under
Treasury regulation § 1.860F-4(d) and temporary Treasury
regulation § 301.6231(a)(7)-1T. 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.
Termination 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.
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 either (i) the Rolling Three
Month Delinquency Rate as of the last day of the related Due Period
equals or exceeds 30.00% of the Senior Enhancement Percentage for
such Distribution Date or (ii) the cumulative Realized Losses as a
percentage of the original Aggregate Loan Balance on the Closing
Date for such Distribution Date is greater than the percentage set
forth in the following table:
|
Distribution Date
|
Percentage
|
|
October 2008 to September
2009
|
0.90%
|
|
October 2009 to September
2010
|
1.35%
|
|
October 2010 to September
2011
|
1.75%
|
|
October 2011 and
thereafter
|
2.05%
|
*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, the Basis Risk Shortfall Reserve Fund and the Cap
Contracts.
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 Pass-Through Rate on the Uncertificated Principal
Balance of such 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 Principal
Balance : With respect to
each REMIC Regular Interest, the principal amount of such REMIC
Regular Interest outstanding as of any date of determination. As of
the Closing Date, the Uncertificated Principal Balance of each
REMIC Regular Interest shall equal the amount set forth in the
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 Section 5.07 and, if
and to the extent necessary and appropriate, shall be further
reduced on such Distribution Date by Realized Losses as provided in
Section 5.07. The Uncertificated Principal Balance of each REMIC
Regular Interest shall never be less than zero.
Uncertificated REMIC I
Pass-Through Rate : With
respect to REMIC I Regular Interest LTI-AA, REMIC I Regular
Interest LTI-IA1, REMIC I Regular Interest LTI-IA2, REMIC I Regular
Interest LTI-IIA1, REMIC I Regular Interest LTI-IIA2, REMIC I
Regular Interest LTI-IIIA1, REMIC I Regular Interest LTI-IIIA2,
REMIC I Regular Interest LTI-IIIA3, REMIC I Regular Interest
LTI-IIIA4, REMIC I Regular Interest LTI-M1, REMIC I Regular
Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I Regular
Interest LTI-M4, REMIC I Regular Interest LTI-M5, REMIC I Regular
Interest LTI-ZZ, REMIC I Regular Interest LTI-1SUB, REMIC I Regular
Interest LTI-2SUB, REMIC I Regular Interest LTI-3SUB and REMIC I
Regular Interest LTI-XX, the weighted average Net Mortgage Rate of
the Mortgage Loans. With respect to REMIC I Regular Interest
LTI-1GRP, the weighted average Net Mortgage Rate of the Group I
Mortgage Loans. With respect to REMIC I Regular Interest LTI-2GRP,
the weighted average Net Mortgage Rate of the Group II Mortgage
Loans. With respect to REMIC I Regular Interest LTI-3GRP, the
weighted average Net Mortgage Rate of the Group III Mortgage
Loans.
Uncertificated REMIC Regular
Interest : The REMIC I
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) 98% to the Certificates (other than the Class X,
Class P and the Residual Certificates) and (ii) 1% to each of the
Class X Certificates and Class P Certificates. Voting rights
will be allocated among the Certificates of each such Class in
accordance with their respective Percentage Interests. The Residual
Certificates will not be allocated any voting rights.
Wells Fargo
: Wells Fargo Bank, N.A., in its
capacity as a Custodian.
Wells Fargo Custodial
Agreement : The Custodial
Agreement dated as of September 1, 2005 among Wells Fargo, in its
capacity as a Custodian, the Servicer and the Trustee
|
Section 1.02
|
Allocation of Certain Interest
Shortfalls .
|
For purposes of calculating the
amount of the Interest Remittance Amount for any Distribution Date,
(1) the aggregate amount of any Net Interest Shortfalls in respect
of the Mortgage Loans for any Distribution Date shall reduce the
Interest Remittance Amount 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 of each class of Publicly Offered Certificates
and (2) the aggregate amount of any Realized Losses allocated to
the Class I-A-2, Class II-A-2 and Class III-A-4 Certificates and
Subordinate Certificates and Basis Risk Shortfalls allocated to the
Publicly Offered Certificates 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 respective
Pass-Through Rate on the Certificate Principal 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 REMIC I Marker Allocation
Percentage of the aggregate amount of any Net Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated among REMIC I Regular Interest LTI-AA, REMIC I
Regular Interest LTI-IA1, REMIC I
Regular Interest LTI-IA2, REMIC I
Regular Interest LTI-IIA1, REMIC I Regular Interest LTI-IIA2, REMIC
I Regular Interest LTI-IIIA1, REMIC I Regular Interest LTI-IIIA2,
REMIC I Regular Interest LTI-IIIA3, REMIC I Regular Interest
LTI-IIIA4, REMIC I Regular Interest LTI-M1, REMIC I Regular
Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I Regular
Interest LTI-M4, REMIC I Regular Interest LTI-M5 and REMIC I
Regular Interest LTI-ZZ, pro rata based on, and 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; and
The REMIC I Sub WAC Allocation
Percentage of the aggregate amount of any Net Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated to Uncertificated Accrued Interest payable to
REMIC I Regular Interest LTI-1SUB, REMIC I Regular Interest
LTI-1GRP, REMIC I Regular Interest LTI-2SUB, REMIC I Regular
Interest LTI-2GRP, REMIC I Regular Interest LTI-3SUB, REMIC I
Regular Interest LTI-3GRP and REMIC I Regular Interest LTI-XX,
pro rata based on, and 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.
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. 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 or any other agreement or
instrument relating thereto except as specifically set forth
herein.
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 Servicer 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 Servicer 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 Servicer shall not be responsible for any
custodian fees or other costs incurred in obtaining such documents
and the Depositor shall cause the Servicer to be reimbursed for any
such costs the Servicer may incur in connection with performing its
obligations under this Agreement.
The Mortgage Loans permitted by the
terms of this Agreement to be included in the Trust are limited to
(i) Mortgage Loans (which the Depositor acquired pursuant to the
Mortgage Loan Purchase Agreement, which contains, among other
representations and warranties, a representation and warranty of
the Seller that no Mortgage Loan is a “High-Cost Home
Loan” as defined in the New Jersey Home Ownership Act
effective November 27, 2003, as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004) as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November
7, 2004 (Mass. Ann. Laws Ch. 183C) or as defined in the Indiana
Home Loan Practices Act, effective January 1, 2005 (Ind. Code Ann.
Sections 24-9-1 through 24-9-9) and (ii) Qualified Substitute
Mortgage Loans (which, by definition as set forth herein and
referred to in the Mortgage Loan Purchase Agreement, are required
to conform to, among other representations and warranties, the
representation and warranty of the Seller that no Qualified
Substitute Mortgage Loan is a “High-Cost Home Loan” as
defined in the New Jersey Home Ownership Act effective November 27,
2003, as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, as defined in the Massachusetts
Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Ann. Laws Ch. 183C) or as defined in the Indiana Home Loan
Practices Act, effective January 1, 2005 (Ind. Code Ann. Sections
24-9-1 through 24-9-9). The Depositor and the Trustee on behalf of
the Trust understand and agree that it is not intended that any
mortgage loan be included in the Trust that is a “High-Cost
Home Loan” as defined in the New Jersey Home Ownership Act
effective November 27, 2003, as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004, as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November
7, 2004 (Mass. Ann. Laws Ch. 183C) or as defined in the Indiana
Home Loan Practices Act, effective January 1, 2005 (Ind. Code Ann.
Sections 24-9-1 through 24-9-9).
|
Section 2.02
|
Acceptance of the Mortgage
Loans .
|
(a) Based
on the initial trust receipt received by it from the Custodian
pursuant to the Custodial Agreement, the Trustee acknowledges
receipt, subject to the provisions of Section 2.01 hereof and
Section 2 of the 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 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
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
Custodial Agreement, the 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 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 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 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 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 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 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 Custodian shall note such defect in the
exception report attached the final trust receipt issued pursuant
to the 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 sixty (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 ninety (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 Servicer for deposit in the 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
Custodial Account and upon receipt of a request for release (in the
form attached to the Custodial Agreement) with respect to such
Mortgage Loan, the 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 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 Custodian the Mortgage Note and other
documents constituting the Mortgage File with respect to any
Replacement Mortgage Loan, which the Custodian will review as
provided in the 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.
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Section 2.03
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Representations, Warranties and
Covenants of the Servicer and the Seller .
|
(a) The
Servicer 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 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 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 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 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 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) The
Servicer 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) The
Servicer 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 Mortgage Loans that are
registered with MERS.
(ix) The
Servicer will not waive any Prepayment Charge with respect to a
Mortgage Loan unless it is waived in accordance with the standard
set forth in Section 3.01.
If the covenant of the Servicer set
forth in Section 2.03(a)(ix) above is breached by the
Servicer, the Servicer 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 the Servicer or
receipt of notice by Servicer of such breach. Notwithstanding the
foregoing, or anything to the contrary contained in this Agreement,
the Servicer shall have no liability for a waiver of any Prepayment
Charge in the event that the Servicer’s determination to make
such a waiver was made by the Servicer in reliance on information
properly received by the Servicer from any Person in accordance
with the terms of this Agreement.
(b) The
Seller hereby represents and warrants to and covenants with, the
Depositor, the Servicer, 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).
(ix) No
loan is a High Cost Loan or Covered Loan, as applicable (as such
terms are defined in Appendix E of the Standard & Poor's
Glossary For File Format For LEVELS® Version 5.6 Revised
(attached hereto as Exhibit K) and no Mortgage Loan originated on
or after October 1, 2002 through March 6, 2003 is governed by the
Georgia Fair Lending Act.
(x) Any
and all requirements of any federal, state or local law including,
without limitation, usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity,
fair housing, predatory, abusive lending or
disclosure laws applicable to the
origination and servicing of the Mortgage Loans have been complied
with in all material respects.
(c) Upon
discovery by any of the parties hereto of a breach of a
representation or warranty set forth in Section 2.03(b)(viii),
(ix) and (x) and Section 8 of the Mortgage Loan Purchase
Agreement that materially and adversely affects the interests of
the Certificateholders in any Mortgage Loan, the party discovering
such breach shall give prompt written notice thereof to the other
parties. The Seller hereby covenants with respect to the
representations and warranties set forth in
Section 2.03(b)(viii), (ix) and (x) and Section 8 of the
Mortgage Loan Purchase Agreement, that within ninety (90) days of
the discovery of a breach of any representation or warranty set
forth therein that materially and adversely affects the interests
of the Certificateholders in any Mortgage Loan, it shall cure such
breach in all material respects and, if such breach is not so
cured, (i) prior to the second anniversary of the Closing Date,
remove such Mortgage Loan (a “Deleted Mortgage Loan”)
from the Trust Fund and substitute in its place a Replacement
Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage
Loan or Mortgage Loans from the Trustee at the Purchase Price in
the manner set forth below; provided that any such substitution
pursuant to (i) above or repurchase pursuant to (ii) above shall
not be effected prior to the delivery to the Trustee of an Opinion
of Counsel if required by Section 2.05 and any such
substitution pursuant to (i) above shall not be effected prior to
the additional delivery to the related Custodian of a request for
release in accordance with the related Custodial Agreement. The
Seller shall promptly reimburse the Trustee for any expenses
reasonably incurred by the Trustee in respect of enforcing the
remedies for such breach. To enable the Servicer to amend the
Mortgage Loan Schedule, the Seller shall, unless it cures such
breach in a timely fashion pursuant to this Section 2.03,
promptly notify the Trustee whether it intends either to
repurchase, or to substitute for, the Mortgage Loan affected by
such breach. With respect to the representations and warranties in
Section 8 of the Mortgage Loan Purchase Agreement that are
made to the best of the Seller’s knowledge, if it is
discovered by any of the Depositor, the Seller or the Trustee that
the substance of such representation and warranty is inaccurate and
such inaccuracy materially and adversely affects the value of the
related Mortgage Loan, notwithstanding the Seller’s lack of
knowledge with respect to the substance of such representation or
warranty, the Seller shall nevertheless be required to cure,
substitute for or repurchase the affected Mortgage Loan in
accordance with the foregoing. Notwithstanding the foregoing, any
breach of a representation or warranty contained in clauses
(xxxvii), (xxxviii), (xxxix), (xl) and/or (xlv) of Section 8
of the Mortgage Loan Purchase Agreement shall be automatically
deemed to materially and adversely affect the interests of the
Certificateholders.
With respect to any Replacement
Mortgage Loan or Loans, the Seller shall deliver to the related
Custodian for the benefit of the Certificateholders such documents
and agreements as are required by Section 2 of the related
Custodial Agreement. No substitution will be made in any calendar
month after the Determination Date for such month. Scheduled
Payments due with respect to Replacement Mortgage Loans in the Due
Period related to the Distribution Date on which such proceeds are
to be distributed shall not be part of the Trust Fund and will be
retained by the Seller. For the month of substitution,
distributions to Certificateholders will include the Scheduled
Payment due on any Deleted Mortgage Loan for the related Due Period
and thereafter the Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan. The Servicer
shall amend the Mortgage Loan Schedule for the benefit of
the
Certificateholders to reflect the
removal of such Deleted Mortgage Loan and the substitution of the
Replacement Mortgage Loan or Loans and shall deliver the amended
Mortgage Loan Schedule to the Trustee, the Master Servicer and the
Securities Administrator. Upon such substitution, the Replacement
Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have
made with respect to such Replacement Mortgage Loan or Loans, as of
the date of substitution, the representations and warranties set
forth in Section 8 of the Mortgage Loan Purchase Agreement
with respect to such Mortgage Loan. Upon any such substitution and
the deposit into the Custodial Account of the amount required to be
deposited therein in connection with such substitution as described
in the following paragraph and receipt by the related Custodian of
a request for release for such Mortgage Loan in accordance with the
related Custodial Agreement, the related Custodian on behalf of the
Trustee shall release to the Seller the Mortgage File relating to
such Deleted Mortgage Loan and held for the benefit of the
Certificateholders and the Trustee shall execute and deliver at the
Seller’s direction such instruments of transfer or assignment
as have been prepared by the Seller, in each case without recourse,
as shall be necessary to vest in the Seller, or its respective
designee, title to the Trustee’s interest in any Deleted
Mortgage Loan substituted for pursuant to this Section 2.03.
Neither the Trustee nor the Custodian shall have any further
responsibility with regard to such Mortgage File.
For any month in which the Seller
substitutes one or more Replacement Mortgage Loans for a Deleted
Mortgage Loan, the Securities Administrator will determine the
amount (if any) by which the aggregate principal balance of all the
Replacement Mortgage Loans as of the date of substitution is less
than the Stated Principal Balance (after application of the
principal portion of the Scheduled Payment due in the month of
substitution) of such Deleted Mortgage Loan. An amount equal to the
aggregate of such deficiencies, described in the preceding sentence
for any Distribution Date (such amount, the “Substitution
Adjustment Amount”) shall be remitted to the Servicer for
deposit in the Custodial Account by the Seller delivering such
Replacement Mortgage Loan on or before the Determination Date for
the Distribution Date relating to the Prepayment Period during
which the related Mortgage Loan was required to be purchased or
replaced hereunder.
In the event that the Seller shall
be required to repurchase a Mortgage Loan, the Purchase Price
therefor shall be remitted to the Servicer for deposit in the
Custodial Account, on or before the Determination Date immediately
following the date on which the Seller was required to repurchase
such Mortgage Loan. The Purchase Price shall be remitted by the
Servicer to the Securities Administrator on the Remittance Date
occurring in the month immediately following the month in which the
Purchase Price was deposited in the Custodial Account. In addition,
upon such deposit of the Purchase Price, the delivery of an
Officer’s Certificate by the Servicer to the Trustee
certifying that the Purchase Price has been deposited in the
Custodial Account, the delivery of an Opinion of Counsel if
required by Section 2.05 and the receipt of a Request for
Release, the Trustee shall release the related Mortgage File held
for the benefit of the related Certificateholders to the Seller,
and the Trustee shall execute and deliver at such Person’s
direction the related instruments of transfer or assignment
prepared by the Seller, in each case without recourse, as shall be
necessary to transfer title from the Trustee for the benefit of the
Certificateholders and transfer the Trustee’s interest to the
Seller to any Mortgage Loan purchased pursuant to this
Section 2.03. It is understood and agreed that the obligation
under this Agreement of the Seller to cure, repurchase or replace
any Mortgage Loan as to which a
breach has occurred or is continuing
shall constitute the sole remedies against the Seller respecting
such breach available to Certificateholder, the Depositor or the
Trustee.
(d) The
Master Servicer hereby represents, warrants and covenants with the
Servicer, Depositor and the Trustee as follows, as of the Closing
Date:
(i) The
Master Servicer is a national banking association duly formed,
validly existing and in good standing under the laws of the United
States of America and is duly authorized and qualified to transact
any and all business contemplated by this Agreement to be conducted
by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its
business as presently conducted by it and to execute, deliver and
perform, and to enter into and consummate, all transactions
contemplated by this Agreement. The Master Servicer has duly
authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this
Agreement, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a legal, valid and binding
obligation of the Master Servicer, enforceable against it in
accordance with its terms except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization or similar
laws affecting the enforcement of creditors’ rights generally
and by general principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer,
the consummation by the Master Servicer of any other of the
transactions herein contemplated, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of
business of the Master Servicer and will not (A) result in a breach
of any term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or
acceleration of, or result in a default under, the terms of any
other material agreement or instrument to which the Master Servicer
is a party or by which it may be bound, or any statute, order or
regulation applicable to the Master Servicer of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is
not a party to, bound by, or in breach or violation of any
indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to
the Master Servicer’s knowledge, would in the future
materially and adversely affect, (x) the ability of the Master
Servicer to perform its obligations under this Agreement or (y) the
business, operations, financial condition, properties or assets of
the Master Servicer taken as a whole;
(iv) The
Master Servicer does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant
made by it and contained in this Agreement;
(v) No
litigation is pending against the Master Servicer that would
materially and adversely affect the execution, delivery or
enforceability of this Agreement or the
ability of the Master Servicer to
perform any of its other obligations hereunder in accordance with
the terms hereof,
(vi) There
are no actions or proceedings against, or investigations known to
it of, the Master Servicer before any court, administrative or
other tribunal (A) that might prohibit its entering into this
Agreement, (B) seeking to prevent the consummation of the
transactions contemplated by this Agreement or (C) that might
prohibit or materially and adversely affect the performance by the
Master Servicer of its obligations under, or validity or
enforceability of, this Agreement; and
(vii) No
consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Master Servicer of, or compliance by the
Master Servicer with, this Agreement or the consummation by it of
the transactions contemplated by this Agreement, except for such
consents, approvals, authorizations or orders, if any, that have
been obtained prior to the Closing Date.
(e) The
representations and warranties set forth in Section 2.03 shall
survive delivery of the respective Mortgage Loans and Mortgage
Files to the Trustee or the related Custodian for the benefit of
the Certificateholders.
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Section 2.04
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Representations and Warranties of
the Depositor .
|
The Depositor hereby represents and
warrants to, and covenants, with the Servicer, the Seller, the
Master Servicer, the Securities Administrator and the Trustee as
follows, as of the date hereof and as of the Closing
Date:
(i) The
Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware and has full power and authority (corporate and other)
necessary to own or hold its properties and to conduct its business
as now conducted by it and to enter into and perform its
obligations under this Agreement.
(ii) The
Depositor has the full corporate power and authority 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 a legal, valid and
binding obligation of the Depositor, enforceable against the
Depositor in accordance with its terms, subject, as to
enforceability, to (i) bankruptcy, insolvency, moratorium
receivership and other similar laws relating to creditors’
rights generally and (ii) 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 Depositor, the
consummation 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 Depositor and will
not (A) result in a material breach of any term or provision of the
charter or by-laws of the Depositor 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 Depositor 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 Depositor of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Depositor; and the Depositor 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 Depositor’s ability to
perform or meet any of its obligations under this
Agreement.
(iv) No
litigation is pending, or, to the best of the Depositor’s
knowledge, threatened, against the Depositor that would materially
and adversely affect the execution, delivery or enforceability of
this Agreement or the ability of the Depositor to perform its
obligations under this Agreement in accordance with the terms
hereof.
(v) No
consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Depositor of, or compliance by the Depositor
with, this Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval,
authorization or order is required, the Depositor has obtained the
same.
The Depositor hereby represents and
warrants to the Trustee as of the Closing Date, following the
transfer of the Mortgage Loans to it by the Seller, the Depositor
had good title to the Mortgage Loans and the related Mortgage Notes
were subject to no offsets, claims, defenses or
counterclaims.
It is understood and agreed that the
representations and warranties set forth in this Section 2.04
shall survive delivery of the Mortgage Files to the Trustee or the
related Custodian for the benefit of the Certificateholders. Upon
discovery by the Depositor, the Servicer, the Master Servicer or
the Trustee of a breach of such representations and warranties, the
party discovering such breach shall give prompt written notice to
the others and to each Rating Agency.
Section
2.05 Delivery of Opinion of
Counsel in Connection with Substitutions and Repurchases
.
(a) Notwithstanding
any contrary provision of this Agreement, with respect to any
Mortgage Loan that is not in default or as to which default is not
imminent, no repurchase or substitution pursuant to Sections 2.02
or 2.03 shall be made unless the Seller delivers to the Trustee an
Opinion of Counsel, addressed to the Trustee, to the effect that
such repurchase or substitution would not (i) result in the
imposition of the tax on “prohibited transactions” of
REMIC I or REMIC II or contributions after the Closing Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code,
respectively or (ii) cause any of REMIC I or REMIC II to fail
to
qualify as a REMIC at any time that
any Certificates are outstanding. Any Mortgage Loan as to which
repurchase or substitution was delayed pursuant to this paragraph
shall be repurchased or the substitution therefor shall occur
(subject to compliance with Sections 2.02 or 2.03) upon the earlier
of (a) the occurrence of a default or imminent default with respect
to such Mortgage Loan and (b) receipt by the Trustee of an Opinion
of Counsel to the effect that such repurchase or substitution, as
applicable, will not result in the events described in clause (i)
or clause (ii) of the preceding sentence.
(b) Upon
discovery by the Depositor or the Seller that any Mortgage Loan
does not constitute a “qualified mortgage” within the
meaning of section 860G(a)(3) of the Code, the party discovering
such fact shall promptly (and in any event within five (5) Business
Days of discovery) give written notice thereof to the other parties
and the Trustee. In connection therewith, the Seller, at its
option, shall either (i) substitute, if the conditions in
Section 2.03(c) with respect to substitutions are satisfied, a
Replacement Mortgage Loan for the affected Mortgage Loan, or (ii)
repurchase the affected Mortgage Loan within ninety (90) days of
such discovery in the same manner as it would a Mortgage Loan for a
breach of representation or warranty contained in
Section 2.03. The Trustee shall reconvey to the Seller the
Mortgage Loan to be released pursuant hereto in the same manner,
and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in
Section 2.03.
