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 June 1, 2005
________________________________________
NOMURA ASSET ACCEPTANCE
CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-AP2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
|
Section 1.01
|
Defined Terms.
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|
|
Section 1.02
|
Allocation of Certain Interest
Shortfalls.
|
ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND WARRANTIES
|
Section 2.01
|
Conveyance of Trust Fund.
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|
Section 2.02
|
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
|
Representations and Warranties of
the Depositor.
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Section 2.05
|
Delivery of Opinion of Counsel in
Connection with Substitutions and Repurchases.
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Section 2.06
|
Issuance of the REMIC I Regular
Interests and the Class R-1 Interest.
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|
Section 2.07
|
Conveyance of the REMIC I Regular
Interests; Acceptance of REMIC II by the Trustee.
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Section 2.08
|
Conveyance of the REMIC II Regular
Interests; Acceptance of REMIC III by the Trustee.
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|
Section 2.09
|
Issuance of Class R
Certificates.
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Section 2.10
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Establishment of Trust.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE
MORTGAGE LOANS; ACCOUNTS
|
Section 3.01
|
The Servicer to act as Servicer of
the Mortgage Loans.
|
|
|
Section 3.02
|
Due-on-Sale Clauses; Assumption
Agreements.
|
|
|
Section 3.03
|
Subservicers.
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Section 3.04
|
Documents, Records and Funds in
Possession of the Servicer To Be Held for Trustee.
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|
Section 3.05
|
Maintenance of Hazard
Insurance.
|
|
|
Section 3.06
|
Presentment of Claims and Collection
of Proceeds.
|
|
|
Section 3.07
|
Maintenance of Insurance
Policies.
|
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Section 3.08
|
Reserved.
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Section 3.09
|
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
|
Servicing Compensation.
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Section 3.11
|
REO Property.
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Section 3.12
|
Liquidation Reports.
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Section 3.13
|
Annual Certificate as to
Compliance.
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Section 3.14
|
Annual Independent Certified Public
Accountants’ Servicing Report.
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|
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Section 3.15
|
Books and Records.
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Section 3.16
|
The Trustee.
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Section 3.17
|
REMIC-Related Covenants.
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Section 3.18
|
Reserved.
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Section 3.19
|
Release of Mortgage
Files.
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Section 3.20
|
Documents, Records and Funds in
Possession of the Servicer to be held for Trustee.
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Section 3.21
|
Possession of Certain Insurance
Policies and Documents.
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|
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Section 3.22
|
Reserved.
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Section 3.23
|
UCC.
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Section 3.24
|
Optional Purchase of Defaulted
Mortgage Loans.
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Section 3.25
|
Obligations of the Servicer under
Credit Risk Management Agreement.
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Section 3.26
|
Collection of Mortgage Loan
Payments; Custodial Account.
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Section 3.27
|
Permitted Withdrawals From the
Custodial Account.
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Section 3.28
|
Reports to Master
Servicer.
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Section 3.29
|
Collection of Taxes; Assessments and
Similar Items; Escrow Accounts.
|
|
Section 3.30
|
Reserved
|
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Section 3.31
|
Distribution Account.
|
|
|
Section 3.32
|
Permitted Withdrawals and Transfers
from the Distribution Account.
|
|
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Section 3.33
|
Duties of the Credit Risk Manager;
Termination.
|
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Section 3.34
|
Limitation Upon Liability of the
Credit Risk Manager.
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ARTICLE IV
ADMINISTRATION AND MASTER SERVICING
OF THE MORTGAGE LOANS
|
Section 4.01
|
The Master Servicer.
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Section 4.02
|
Monitoring of Servicer.
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Section 4.03
|
Fidelity Bond.
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Section 4.04
|
Power to Act; Procedures.
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Section 4.05
|
Due-on-Sale Clauses; Assumption
Agreements.
|
|
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Section 4.06
|
Documents, Records and Funds in
Possession of Master Servicer To Be Held for Trustee.
|
|
Section 4.07
|
Standard Hazard Insurance and Flood
Insurance Policies.
|
|
|
Section 4.08
|
Presentment of Claims and Collection
of Proceeds.
|
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|
Section 4.09
|
Maintenance of the Primary Mortgage
Insurance Policies.
|
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|
Section 4.10
|
Trustee to Retain Possession of
Certain Insurance Policies and Documents.
|
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Section 4.11
|
Realization Upon Defaulted
Loans.
|
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|
Section 4.12
|
Compensation for the Master
Servicer.
|
|
|
Section 4.13
|
REO Property.
|
|
|
Section 4.14
|
Annual Officer’s Certificate
as to Compliance.
|
|
|
Section 4.15
|
Annual Independent
Accountant’s Servicing Report.
|
|
|
Section 4.16
|
Reports Filed with Securities and
Exchange Commission.
|
|
|
Section 4.17
|
Reserved.
|
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Section 4.18
|
Obligation of the Master Servicer in
Respect of Prepayment Interest Shortfalls.
|
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ARTICLE V
ADVANCES AND
DISTRIBUTIONS
|
Section 5.01
|
Advances; Advance
Facility.
|
|
|
Section 5.02
|
Compensating Interest
Payments.
|
|
|
Section 5.03
|
REMIC Distributions.
|
|
|
Section 5.04
|
Distributions.
|
|
|
Section 5.05
|
Allocation of Realized
Losses.
|
|
|
Section 5.06
|
Monthly Statements to
Certificateholders.
|
|
|
Section 5.07
|
REMIC Designations and REMIC I
Allocations.
|
|
Section 5.08
|
REMIC II Allocations.
|
|
|
Section 5.09
|
Class P Certificate
Account.
|
|
|
Section 5.10
|
Net WAC Reserve Fund.
|
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ARTICLE VI
THE CERTIFICATES
|
Section 6.01
|
The Certificates.
|
|
|
Section 6.02
|
Certificate Register; Registration
of Transfer and Exchange of Certificates.
|
|
Section 6.03
|
Mutilated, Destroyed, Lost or Stolen
Certificates.
|
|
|
Section 6.04
|
Persons Deemed Owners.
|
|
|
Section 6.05
|
Access to List of
Certificateholders’ Names and Addresses.
|
|
|
|
|
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|
Section 6.06
|
Book-Entry Certificates.
|
|
|
Section 6.07
|
Notices to Depository.
|
|
|
Section 6.08
|
Definitive Certificates.
|
|
|
Section 6.09
|
Maintenance of Office or
Agency.
|
|
|
|
|
|
|
ARTICLE VII
THE DEPOSITOR, THE SERVICER AND THE
MASTER SERVICER
|
Section 7.01
|
Liabilities of the Depositor, the
Servicer and the Master Servicer
|
|
|
Section 7.02
|
Merger or Consolidation of the
Depositor, the Servicer or the Master Servicer.
|
|
Section 7.03
|
Indemnification of Depositor and the
Servicer.
|
|
|
|
|
|
|
|
Section 7.04
|
Limitations on Liability of the
Depositor, Securities Administrator, Master Servicer, Servicer and
Others
|
|
Section 7.05
|
The Servicer Not to
Resign.
|
|
|
Section 7.06
|
Termination of the Servicer Without
Cause; Appointment of Special Servicer.
|
|
Section 7.07
|
Limitation on Resignation of the
Master Servicer.
|
|
|
Section 7.08
|
Assignment of Master
Servicing.
|
|
|
Section 7.09
|
Rights of the Depositor in Respect
of the Master Servicer.
|
|
|
|
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|
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|
ARTICLE VIII
DEFAULT; TERMINATION OF SERVICER AND
MASTER SERVICER
|
Section 8.01
|
Events of Default.
|
|
|
Section 8.02
|
Master Servicer to Act; Appointment
of Successor.
|
|
|
Section 8.03
|
Notification to
Certificateholders.
|
|
|
Section 8.04
|
Waiver of Servicer Defaults and
Master Servicer Defaults.
|
|
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|
|
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|
ARTICLE IX
CONCERNING THE TRUSTEE AND
SECURITIES ADMINISTRATOR
|
Section 9.01
|
Duties of Trustee and Securities
Administrator.
|
|
|
Section 9.02
|
Certain Matters Affecting the
Trustee and Securities Administrator.
|
|
|
Section 9.03
|
Trustee and Securities Administrator
not Liable for Certificates or Mortgage Loans.
|
|
Section 9.04
|
Trustee and Securities Administrator
May Own Certificates.
|
|
|
Section 9.05
|
Fees and Expenses of Trustee and
Securities Administrator.
|
|
|
Section 9.06
|
Eligibility Requirements for Trustee
and Securities Administrator.
|
|
|
Section 9.07
|
Resignation and Removal of Trustee
and Securities Administrator.
|
|
|
Section 9.08
|
Successor Trustee or Securities
Administrator.
|
|
|
Section 9.09
|
Merger or Consolidation of Trustee
or Securities Administrator.
|
|
|
Section 9.10
|
Appointment of Co-Trustee or
Separate Trustee.
|
|
|
Section 9.11
|
Appointment of Office or
Agency.
|
|
|
Section 9.12
|
Representations and
Warranties.
|
|
|
Section 9.13
|
Tax Matters.
|
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|
ARTICLE X
TERMINATION
|
Section 10.01
|
Termination upon Liquidation or
Repurchase of all Mortgage Loans.
|
|
Section 10.02
|
Final Distribution on the
Certificates.
|
|
|
Section 10.03
|
Additional Termination
Requirements.
|
|
|
|
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|
|
ARTICLE XI
MISCELLANEOUS PROVISIONS
|
Section 11.01
|
Amendment.
|
|
|
Section 11.02
|
Recordation of Agreement;
Counterparts.
|
|
|
Section 11.03
|
Governing Law.
|
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|
Section 11.04
|
Intention of Parties.
|
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|
Section 11.05
|
Notices.
|
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|
Section 11.06
|
Severability of
Provisions.
|
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|
Section 11.07
|
Assignment.
|
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|
Section 11.08
|
Limitation on Rights of
Certificateholders.
|
|
Section 11.09
|
Certificates Nonassessable and Fully
Paid.
|
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|
Exhibits
|
Exhibit A-1
|
Form of Class A-[1][2][3][4][5]
Certificates
|
|
|
Exhibit A-2
|
Form of Class A-IO
Certificates
|
|
|
Exhibit A-3
|
Form of Class M-[1][2][3]
Certificates
|
|
|
Exhibit A-4
|
Form of Class X
Certificates
|
|
|
Exhibit A-5
|
Form of Class P
Certificates
|
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|
Exhibit A-6
|
Form of Class R
Certificates
|
|
|
Exhibit B
|
Mortgage Loan Schedule
|
|
|
Exhibit C
|
Reserved
|
|
|
Exhibit D
|
Form of Transfer
Affidavit
|
|
|
Exhibit E
|
Form of Transferor
Certificate
|
|
|
Exhibit F
|
Form of Investment Letter (Non-Rule
144A)
|
|
|
Exhibit G
|
Form of Rule 144A Investment
Letter
|
|
|
Exhibit H
|
Reserved
|
|
|
Exhibit I
|
DTC Letter of
Representations
|
|
|
Exhibit J
|
Schedule of Mortgage Loans with Lost
Notes
|
|
|
Exhibit K
|
Prepayment Charge
Schedule
|
|
|
Exhibit L
|
Form of Servicer’s
Certification
|
|
|
Exhibit M
|
Form of Trustee’s
Certification
|
|
|
Exhibit N
|
Appendix E of the Standard &
Poor's Glossary For File
|
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|
|
Format For LEVELS® Version 5.6
Revised
|
Exhibit X-1
|
Standard File Layout –
Delinquency Reporting
|
|
Exhibit X-2
|
Standard File Codes –
Delinquency Reporting
|
|
POOLING AND SERVICING AGREEMENT,
dated as of June 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 the servicer (“GMACM”)
and HSBC BANK USA, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, but solely as trustee
(the “Trustee”).
PRELIMINARY STATEMENT
The Depositor is the owner of the
Trust Fund that is hereby conveyed to the Trustee in return for the
Certificates.
REMIC I
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the Mortgage Loans and certain other related assets as set forth
in the definition of REMIC I (and exclusive of the Cap Contract and
the Net WAC Reserve Fund) subject to this Agreement as a real
estate mortgage investment conduit (a “REMIC”) for
federal income tax purposes, and such segregated pool of assets
will be designated as “REMIC I.” The Class R-1 Interest
will represent the sole class of “residual interests”
in REMIC I for purposes of the REMIC Provisions (as defined herein)
under federal income tax law. The following table irrevocably sets
forth the designation, the Uncertificated REMIC I Pass-Through
Rate, the Initial Uncertificated Principal Balance, and for
purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each of the REMIC I Regular Interests. None of the
REMIC I Regular Interests will be certificated.
|
|
Initial Uncertificated
Principal Balance
|
Uncertificated REMIC
I Pass-Through Rate
|
Assumed Final
Maturity Date(1)
|
|
LTI-1
|
$
|
249,463,662.37
|
Variable (2)
|
May 25, 2035
|
|
LTI-IO-A
|
$
|
5,161,000.00
|
Variable (2)
|
May 25, 2035
|
|
LTI-IO-B
|
$
|
2,065,000.00
|
Variable (2)
|
May 25, 2035
|
|
LTI-IO-C
|
$
|
3,096,000.00
|
Variable (2)
|
May 25, 2035
|
|
LTI-IO-D
|
$
|
3,097,000.00
|
Variable (2)
|
May 25, 2035
|
|
LTI-IO-E
|
$
|
2,064,000.00
|
Variable (2)
|
May 25, 2035
|
|
LTI-IO-F
|
$
|
2,065,000.00
|
Variable (2)
|
May 25, 2035
|
|
LTI-IO-G
|
$
|
2,890,000.00
|
Variable (2)
|
May 25, 2035
|
|
LTI-IO-H
|
$
|
5,368,000.00
|
Variable (2)
|
May 25, 2035
|
|
LTI-P
|
$
|
100.00
|
N/A
|
May 25, 2035
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury regulations, the Distribution Date in the month
following the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the “latest possible
maturity date” for each Class of Certificates that represents
one or more of the “regular interests” in REMIC
I.
|
|
(2)
|
Calculated in accordance with the
definition of “Uncertificated REMIC I Pass-Through
Rate” herein.
|
REMIC II
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as
“REMIC II”. The Class R-2 Interest will represent the
sole class of “residual interests” in REMIC II for
purposes of the REMIC Provisions (as defined herein) under federal
income tax law. The following table irrevocably sets forth the
designation, the Uncertificated REMIC II Pass-Through Rate, the
Initial Uncertificated Principal Balance, and for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC
II Regular Interests. None of the REMIC II Regular Interests will
be certificated.
|
|
Initial
Uncertificated
Principal Balance
|
Uncertificated
REMIC II
Pass-Through Rate
|
Assumed Final
Maturity Date(1)
|
|
LTII-AA
|
$
|
269,764,269.12
|
Variable (2)
|
May 25, 2035
|
|
LTII-A1
|
$
|
152,850,850.00
|
Variable (2)
|
May 25, 2035
|
|
LTII-A2
|
$
|
610,640.00
|
Variable (2)
|
May 25, 2035
|
|
LTII-A3
|
$
|
203,320.00
|
Variable (2)
|
May 25, 2035
|
|
LTII-A4
|
$
|
245,440.00
|
Variable (2)
|
May 25, 2035
|
|
LTII-A5
|
$
|
275,270.00
|
Variable (2)
|
May 25, 2035
|
|
LTII-M1
|
$
|
68,820.00
|
Variable (2)
|
May 25, 2035
|
|
LTII-M2
|
$
|
55,050.00
|
Variable (2)
|
May 25, 2035
|
|
LTII-M3
|
$
|
41,280.00
|
Variable (2)
|
May 25, 2035
|
|
LTII-ZZ
|
$
|
2,752,723.25
|
Variable (2)
|
May 25, 2035
|
|
LTII-IO-A
|
|
N/A (3)
|
1.00% (4)
|
May 25, 2035
|
|
LTII-IO-B
|
|
N/A (5)
|
3.50% (6)
|
May 25, 2035
|
|
LTII-P
|
$
|
100.00
|
Variable (2)
|
May 25, 2035
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury regulations, the Distribution Date in the month
following the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the “latest possible
maturity date” for each REMIC II Regular Interest.
|
|
(2)
|
Calculated in accordance with the definition of
“Uncertificated REMIC II Pass-Through Rate”
herein.
|
|
(3)
|
REMIC II Regular Interest LTII-IO-A will not have
an Uncertificated Principal Balance, but will accrue interest on
its Uncertificated Notional Amount, as defined herein.
|
|
(4)
|
REMIC II Regular Interest LTII-IO-A will accrue
interest at a rate of (i) for the first twelve Distribution Dates,
1.00% and (ii) thereafter, 0.00%.
|
|
(5)
|
REMIC II Regular Interest LTII-IO-B will not have
an Uncertificated Principal Balance, but will accrue interest on
its Uncertificated Notional Amount, as defined herein.
|
|
(6)
|
REMIC II Regular Interest LTII-IO-B
will accrue interest at a rate of (i) for the first twenty-four
Distribution Dates, 3.50% and (ii) thereafter, 0.00%.
|
REMIC III
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the REMIC II Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as
“REMIC III”. The Class R-3 Interest will represent the
sole class of “residual interests” in REMIC III for
purposes of the REMIC Provisions. The following table irrevocably
sets forth the Class designation, Pass-Through Rate and Initial
Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in
REMIC III created hereunder:
|
|
Initial Certificate
Principal Balance
|
|
Assumed Final
Maturity Date(1)
|
|
Class A-1
|
$
|
125,285,000
|
Class A-1 Pass-Through Rate
|
May 25, 2035
|
|
Class A-2
|
$
|
61,064,000
|
Class A-2 Pass-Through Rate
|
May 25, 2035
|
|
Class A-3
|
$
|
20,332,000
|
Class A-3 Pass-Through Rate
|
May 25, 2035
|
|
Class A-4
|
$
|
24,544,000
|
Class A-4 Pass-Through Rate
|
May 25, 2035
|
|
Class A-5
|
$
|
27,527,000
|
Class A-5 Pass-Through Rate
|
May 25, 2035
|
|
Class A-IO
|
|
N/A (2)
|
Class A-IO Pass-Through Rate
|
May 25, 2035
|
|
Class M-1
|
$
|
6,882,000
|
Class M-1 Pass-Through Rate
|
May 25, 2035
|
|
Class M-2
|
$
|
5,505,000
|
Class M-2 Pass-Through Rate
|
May 25, 2035
|
|
Class M-3
|
$
|
4,128,000
|
Class M-3 Pass-Through Rate
|
May 25, 2035
|
|
Class X
|
$
|
2,662.37 (3)
|
Class X Pass-Through Rate
|
May 25, 2035
|
|
Class P
|
$
|
100.00
|
N/A (4)
|
May 25, 2035
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury regulations, the Distribution Date in the month
following the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the “latest possible
maturity date” for each Class of Certificates.
|
|
(2)
|
The Class A-IO Certificates will accrue interest
at the Class A-IO Pass-Through Rate on the Certificate Notional
Balance of the Class A-IO Certificates calculated in accordance
with the definition of “Certificate Notional Balance”
herein. The Class A-IO Certificates will not be entitled to
distributions in respect of principal. For federal income tax
purposes, the Class A-IO Certificates will not have a Notional
Amount, but will be entitled to 100% of amounts distributed on
REMIC II Regular Interest LTII-IO-A and REMIC II Regular Interest
LTII-IO-B.
|
|
(3)
|
The Class X Certificates will not accrue interest
on their Certificate Principal Balance, but will accrue interest at
the Class X Pass-Through Rate on the Certificate Notional Balance
of the Class X Certificates outstanding from time to time which
shall equal the aggregate of the Uncertificated Principal Balances
of the REMIC II Regular Interests (other than REMIC II Regular
Interest LTII-IO-A, REMIC II Regular Interest LTII-IO-B and REMIC
II Regular Interest LTII-P).
|
|
(4)
|
The Class P Certificates will not be
entitled to distributions in respect of interest.
|
In consideration of the mutual
agreements herein contained, the Depositor, Servicer, the Master
Servicer, the Securities Administrator, the Seller and the Trustee
agree as follows:
ARTICLE I
DEFINITIONS
|
Section 1.01
|
Defined Terms
.
|
In addition to those terms defined
in Section 1.02, whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall
have the following meanings:
Accepted Master Servicing
Practices : With respect
to any Mortgage Loan, as applicable, either (x) those customary
mortgage master servicing practices of prudent mortgage servicing
institutions that master service mortgage loans of the same type
and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to
the Master Servicer (except in its capacity as successor to the
Servicer), or (y) as provided in Section 3.01 hereof, but in no
event below the standard set forth in clause (x).
Account : Either the Distribution Account or the
Custodial Account.
Accrual Period
: With respect to the Certificates
(other than the Class A-1, Class P and Class R Certificates) and
any Distribution Date, the calendar month immediately preceding the
calendar month in which such Distribution Date occurs. With respect
to the Class A-1 Certificates and any Distribution Date, the period
from and including the 25 th day of the calendar month
preceding the calendar month in which such Distribution Date occurs
(or with respect to the first Accrual Period, the Closing Date) to
and including the 24 th day of the calendar month in
which such Distribution Date occurs.
Advance : An advance of delinquent payments of principal
or interest in respect of a 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).
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 such
Mortgage Loans after the last day of the related Prepayment
Period.
Appraised Value
: With respect to any Mortgage Loan
originated in connection with a refinancing, the appraised value of
the Mortgaged Property based upon the appraisal made at the time of
such refinancing or, with respect to any other Mortgage Loan, the
lesser of (x) the appraised value of the Mortgaged Property based
upon the appraisal made by a fee appraiser at the time of the
origination of the Mortgage Loan, and (y) the sales price of the
Mortgaged Property at the time of such origination.
Authorized Servicer
Representative : Any
officer of 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 Funds, exclusive of
amounts pursuant to Section 5.09.
Bankruptcy Code
: Title 11 of the United States
Code.
Book-Entry
Certificates : Any of the
Certificates that shall be registered in the name of the Depository
or its nominee, the ownership of which is reflected on the books of
the Depository or on the books of a person maintaining an account
with the Depository (directly, as a “Depository
Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in
Section 6.06). As of the Closing Date, each Class of Publicly
Offered Certificates constitutes a Class of Book-Entry
Certificates.
Business Day
: Any day other than (i) a Saturday
or a Sunday, or (ii) a day on which banking institutions in The
City of New York, New York, the Commonwealth of Pennsylvania, the
State of Maryland, the State of Minnesota, the city in which any
Corporate Trust Office of the Trustee is located or the States in
which the Servicer’s servicing operations are located are
authorized or obligated by law or executive order to be
closed.
Cap Contract
: The cap contract between the
Trustee and the Cap Provider, for the benefit of the Holders of the
Class A-1 Certificates.
Cap Provider
: Nomura Global Financial Products,
Inc., or any successor thereto.
Certificate
: Any one of the certificates of any
Class executed and authenticated by the Securities Administrator in
substantially the forms attached hereto as Exhibits A-1 through
A-6.
Certificate Notional
Balance : With respect to
the Class A-IO Certificates and any Distribution Date, the lesser
of (a)(i) $25,806,000, for each Distribution Date from the
Distribution Date in July 2005 to and including the Distribution
Date in December 2005, (ii) $20,645,000, for each Distribution Date
from the Distribution Date in January 2006 to and including the
Distribution Date in April 2006, (iii) $18,580,000, for each
Distribution Date from the Distribution Date in May 2006 to and
including the Distribution Date in July 2006, (iv) $15,484,000, for
the Distribution Date in August 2006 and the Distribution Date in
September 2006, (v) $12,387,000, for each Distribution Date from
and including the Distribution Date in October 2006 to and
including the Distribution Date in January 2007, (vi) $10,323,000
for the Distribution Date in February 2007 and the Distribution
Date in March 2007, (vii) $8,258,000
for the Distribution Date in April
2007 and the Distribution Date in May 2007, (viii) $5,368,000 for
the Distribution Date in June 2007 and (ix) $0, for each
Distribution Date thereafter and (b) the aggregate Stated Principal
Balance of the Mortgage Loans. For United States federal income tax
purposes, the Class A-IO Certificates will not have a Certificate
Notional Balance, but will be entitled to 100% of amounts
distributed on REMIC II Regular Interest LTII-IO-A and REMIC II
Regular Interest LTII-IO-B. 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 $275,269,662.37.
Certificate Owner
: With respect to a Book-Entry
Certificate, the Person that is the beneficial owner of such
Book-Entry Certificate.
Certificate Principal
Balance : As to any
Publicly Offered Certificate (other than any Class A-IO
Certificates) and as of any Distribution Date, the Initial
Certificate Principal Balance of such Certificate plus any
Subsequent Recoveries added to the Certificate Principal Balance of
such Certificate pursuant to Section 5.05(f) less the sum of (i)
all amounts distributed with respect to such Certificate in
reduction of the Certificate Principal Balance thereof on previous
Distribution Dates pursuant to Section 5.04, and (ii) with respect
to the Mezzanine Certificates, any reductions in the Certificate
Principal Balance of such Certificate deemed to have occurred in
connection with the allocations of Realized Losses, if any.
References herein to the Certificate Principal Balance of a Class
of Certificates shall mean the Certificate Principal Balances of
all Certificates in such Class.
Certificate Register
: The register maintained pursuant
to Section 6.02.
Certificateholder or
Holder : The person in
whose name a Certificate is registered in the Certificate Register
(initially, Cede & Co., as nominee for the Depository, in the
case of any Book-Entry Certificates).
Class : All Certificates bearing the same Class
designation as set forth in Section 6.01.
Class A-1 Certificate
: Any Certificate designated as a
“Class A-1 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to the
Percentage Interest of distributions provided for the Class A-1
Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
Class A-1 Pass-Through
Rate : With respect to
any Distribution Date, One-Month LIBOR plus 0.12% per annum,
subject to a cap equal to the Net WAC Rate Cap for such
Distribution Date.
Class A-2 Certificate
: Any Certificate designated as a
“Class A-2 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to its
Percentage Interest of distributions provided for the Class A-2
Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
Class A-2 Pass-Through
Rate : With respect to
any Distribution Date, 4.777% per annum, subject to a cap equal to
the Net WAC Rate Cap for such Distribution Date.
Class A-3 Certificate
: Any Certificate designated as a
“Class A-3 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to its
Percentage Interest of distributions provided for the Class A-3
Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
Class A-3 Pass-Through
Rate : With respect to
any Distribution Date, 5.034% per annum, subject to a cap equal to
the Net WAC Rate Cap for such Distribution Date.
Class A-4 Certificate
: Any Certificate designated as a
“Class A-4 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to its
Percentage Interest of distributions provided for the Class A-4
Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
Class A-4 Pass-Through
Rate : Shall mean (i)
with respect to any Distribution Date which occurs on or prior to
the Optional Termination Date, 5.396% per annum and (ii) with
respect to each Distribution Date which occurs thereafter, 5.896%
per annum, in each case, subject to a cap equal to the Net WAC Rate
Cap for such Distribution Date.
Class A-5 Certificate
: Any Certificate designated as a
“Class A-5 Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to its
Percentage Interest of distributions provided for the Class A-5
Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
Class A-5 Pass-Through
Rate : Shall mean (i)
with respect to any Distribution Date which occurs on or prior to
the Optional Termination Date, 4.976% per annum and (ii) with
respect to each Distribution Date which occurs thereafter, 5.476%
per annum, in each case, subject to a cap equal to the Net WAC Rate
Cap for such Distribution Date.
Class A-5 Lockout Principal
Distribution Amount :
With respect to any Distribution Date will be an amount equal to
the lesser of (i) the Senior Principal Distribution Amount for such
Distribution Date and (ii) the Class A-5 Lockout Distribution
Percentage for that Distribution Date multiplied by the product of
(x) a fraction, the numerator of which is the Certificate Principal
Balance of the Class A-5 Certificates and the denominator of which
is the aggregate Certificate Principal Balance of all of the Senior
Certificates (other than the Class A-IO Certificates), in each case
immediately prior to such Distribution Date and (y) the Senior
Principal Distribution Amount for such Distribution
Date.
Class A-5 Lockout Distribution
Percentage : With respect
to each Distribution Date, the applicable percentage set forth
below:
|
|
Class A-5 Lockout
Distribution
Percentage
|
|
July 2005 through and including June
2008
|
0%
|
|
July 2008 through and including June
2010
|
45%
|
|
July 2010 through and including June
2011
|
80%
|
|
July 2011 through and including June
2012
|
100%
|
|
July 2012 and thereafter
|
300%
|
Class A-IO Certificate
: Any Certificate designated as a
“Class A-IO Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its
Percentage Interest of distributions provided for the Class A-IO
Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
Class A-IO Pass-Through
Rate : Shall mean (i) for
the first twelve Distribution Dates, 4.50% per annum, subject to a
cap equal to the weighted average of the Net Mortgage Rates on the
Mortgage Loans, (ii) for the next twelve Distribution Dates, 3.50%
per annum, subject to a cap equal to the weighted average of the
Net Mortgage Rates on the Mortgage Loans and (iii) for any
Distribution Date thereafter, 0.00% per annum. For federal income
tax purposes, however, the Class A-IO Certificates will not have a
Class A-IO Pass-Through Rate, and the Interest Distribution Amount
for the Class A-IO Certificates and any Distribution Date will be
deemed to be 100% of the amount distributed on REMIC II Regular
Interest LTII-IO-A and REMIC II Regular Interest LTII-IO-B for such
Distribution Date.
Class M-1 Certificate
: Any Certificate designated as a
“Class M-1 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its
Percentage Interest of distributions provided for the Class M-1
Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
Class M-1 Pass-Through
Rate : Shall mean (i)
with respect to each Distribution Date which occurs on or prior to
the Optional Termination Date, 5.342% per annum and (ii) with
respect to each Distribution Date which occurs thereafter, 5.842%
per annum, in each case subject to a cap equal to the Net WAC Rate
Cap for such Distribution Date.
Class M-1 Principal Distribution
Amount : With respect to
any Distribution Date which occurs (i) prior to the Stepdown Date
or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the Principal Distribution Amount for
that Distribution Date remaining after distribution of the Senior
Principal Distribution Amount or (ii) on or after the Stepdown Date
if a Trigger Event is not in effect for that Distribution Date, the
lesser of:
|
•
|
the Principal Distribution Amount for that
Distribution Date remaining after distribution of the Senior
Principal Distribution Amount; and
|
|
•
|
the excess, if any, of (A) the aggregate
Certificate Principal Balance of the Class M-1 Certificates
immediately prior to that Distribution Date over (B) the positive
difference between (i) the aggregate Stated Principal Balance of
the Mortgage
|
Loans as of the last day of the
related Due Period (after reduction for Realized Losses incurred
during the related Prepayment Period) and (ii) the sum of (x) the
aggregate Certificate Principal Balance of the Senior Certificates
(after taking into account the payment of the Senior Principal
Distribution Amount for such Distribution Date) and (y) the product
of (a) the aggregate Stated Principal Balance of the Mortgage Loans
as of the last day of the related Due Period (after reduction for
Realized Losses incurred during the related Prepayment Period) and
(b) the sum of 7.000% and the Required Overcollateralization
Percentage.
Class M-2 Certificate
: Any Certificate designated as a
“Class M-2 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its
Percentage Interest of distributions provided for the Class M-2
Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
Class M-2 Pass-Through
Rate : Shall mean (i)
with respect to each Distribution Date which occurs on or prior to
the Optional Termination Date, 5.591 % per annum and (ii) with
respect to each Distribution Date which occurs thereafter, 6.091%
per annum, in each case subject to a cap equal to the Net WAC Rate
Cap for such Distribution Date.
Class M-2 Principal Distribution
Amount : With respect to
any Distribution Date which occurs (i) prior to the Stepdown Date
or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the Principal Distribution Amount for
that Distribution Date remaining after distribution of the Senior
Principal Distribution Amount and the Class M-1 Principal
Distribution Amount or (ii) on or after the Stepdown Date if a
Trigger Event is not in effect for that Distribution Date, the
lesser of:
|
•
|
the Principal Distribution Amount for that
Distribution Date remaining after distribution of the Senior
Principal Distribution Amount and the Class M-1 Principal
Distribution Amount; and
|
|
•
|
the excess, if any, of (A) the aggregate
Certificate Principal Balance of the Class M-2 Certificates
immediately prior to that Distribution Date over (B) the positive
difference between (i) the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Due Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate
Certificate Principal Balance of the Senior Certificates and the
Class M-1 Certificates (after taking into account the payment of
the Senior Principal Distribution Amount and the Class M-1
Principal Distribution Amount for such Distribution Date) and (y)
the product of (a) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after
reduction for Realized Losses incurred during the related
Prepayment Period) and (b) the sum of 3.00% and the Required
Overcollateralization Percentage.
|
Class M-3 Certificate
: Any Certificate designated as a
“Class M-3 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its
Percentage Interest of distributions provided for the Class M-3
Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
Class M-3 Pass-Through
Rate : Shall mean (i)
with respect to each Distribution Date which occurs on or prior to
the Optional Termination Date, 5.889% per annum and (ii) with
respect to each Distribution Date which occurs thereafter, 6.389%
per annum, in each case subject to a cap equal to the Net WAC Rate
Cap for such Distribution Date.
Class M-3 Principal Distribution
Amount : With respect to
any Distribution Date which occurs (i) prior to the Stepdown Date
or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the Principal Distribution Amount for
that Distribution Date remaining after distribution of the Senior
Principal Distribution Amount, the Class M-1 Principal Distribution
Amount and the Class M-2 Principal Distribution Amount or (ii) on
or after the Stepdown Date if a Trigger Event is not in effect for
that Distribution Date, the lesser of:
|
•
|
the Principal Distribution Amount for that
Distribution Date remaining after distribution of the Senior
Principal Distribution Amount, the Class M-1 Principal Distribution
Amount and the Class M-2 Principal Distribution Amount;
and
|
|
•
|
the excess, if any, of (A) the aggregate
Certificate Principal Balance of the Class M-3 Certificates
immediately prior to that Distribution Date over (B) the positive
difference between (i) the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Due Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate
Certificate Principal Balance of the Senior Certificates, the Class
M-1 Certificates and the Class M-2 Certificates (after taking into
account the payment of the Senior Principal Distribution Amount,
the Class M-1 Principal Distribution Amount and the Class M-2
Principal Distribution Amount for such Distribution Date) and (y)
the product of (a) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after
reduction for Realized Losses incurred during the related
Prepayment Period) and (b) the Required Overcollateralization
Percentage.
|
Class P Certificate
: Any Certificate designated as a
“Class P Certificate” on the face thereof, in the form
of Exhibit A-5 hereto, representing the right to its Percentage
Interest of distributions provided for the Class P Certificates as
set forth herein and evidencing a Regular Interest in REMIC
III.
Class P Certificate
Account : The Eligible
Account established and maintained by the Securities Administrator
pursuant to Section 5.09.
Class R Certificate
: Any Certificate designated a
“Class R Certificate” on the face thereof, in
substantially the form set forth in Exhibit A-6 hereto, evidencing
the Class R-1 Interest, Class R-2 Interest and Class R-3
Interest.
Class R-1 Interest
: The uncertificated residual
interest in REMIC I.
Class R-2 Interest
: The uncertificated residual
interest in REMIC II.
Class R-3 Interest
: The uncertificated residual
interest in REMIC III.
Class X Certificate
: Any Certificate designated as a
“Class X Certificate” on the face thereof, in the form
of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class X Certificates
herein and evidencing a Regular Interest in REMIC III.
Class X Distribution
Amount : With respect to
any Distribution Date, the sum of (i) the Excess Cap Payment, (ii)
the Interest Distribution Amount for the Class X Certificates for
such Distribution Date and (iii) any Overcollateralization
Reduction Amount for such Distribution Date remaining after
payments pursuant to items 1 though 6 of clause Third of
Section 5.04; provided, however that on and after the Distribution
Date on which the Certificate Principal Balance of the Certificates
has been reduced to zero, the Class X Distribution Amount shall
include the Overcollateralization Amount.
Class X Pass-Through
Rate : On any
Distribution Date, a per annum rate equal to the percentage
equivalent of a fraction, the numerator of which is the sum of the
amounts calculated pursuant to clauses (A) through (J) below, and
the denominator of which is the aggregate of the Uncertificated
Principal Balances of the REMIC II Regular Interests (other than
REMIC II Regular Interest LTII-IO-A, REMIC II Regular Interest
LTII-IO-B and REMIC II Regular Interest LTII-P). For purposes of
calculating the Pass-Through Rate for the Class X Certificates, the
numerator is equal to the sum of the following
components:
(A) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-AA minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-AA;
(B) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A1;
(C) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A2;
(D) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A3 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A3;
(E) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A4 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A4;
(F) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A5 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A5;
(G) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-M1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-M1;
(H) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-M2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-M2;
(I) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-M3 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-M3; and
(J) the
Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-ZZ minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-ZZ.
Cleanup Call
: As defined in Section
11.01.
Closing Date
: June 29, 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
one-half of 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-AP2 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-AP2),
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-AP2) (or for overnight
deliveries, at 9062 Old Annapolis Road, Columbia, Maryland 21045,
Attention: Corporate Trust Services-Client Manager (NAAC
2005-AP2)).
Corresponding
Certificate : With
respect to:
|
(i)
|
REMIC II Regular Interest LTII-A1, the Class A-1
Certificates,
|
|
|
|
|
(ii)
|
REMIC II Regular Interest LTII-A2, the Class A-2
Certificates;
|
|
|
|
|
(iii)
|
REMIC II Regular Interest LTII-A3, the Class A-3
Certificates;
|
|
|
|
|
(iv)
|
REMIC II Regular Interest LTII-A4, the Class A-4
Certificates;
|
|
|
|
|
(v)
|
REMIC II Regular Interest LTII-A5, the Class A-5
Certificates;
|
|
|
|
|
(vi)
|
REMIC II Regular Interest LTII-M1, the Class M-1
Certificates;
|
|
|
|
|
(vii)
|
REMIC II Regular Interest LTII-M2, the Class M-2
Certificates;
|
|
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(viii)
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REMIC II Regular Interest LTII-M3, the Class M-3
Certificates; and
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(ix)
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REMIC II Regular Interest LTII-P, the Class P
Certificates.
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Credit Enhancement
Percentage : With respect
to any Distribution Date and any Class of Publicly Offered
Certificates, the percentage obtained by dividing (x) the sum of
(i) the aggregate Certificate Principal Balance of the Class or
Classes of Publicly Offered Certificates subordinate thereto and
(ii) the Overcollateralization Amount by (y) the aggregate Stated
Principal Balance of the Mortgage Loans, calculated after taking
into account distributions of principal on the Mortgage Loans and
distribution of the Principal Distribution Amount to the holders of
the Certificates then entitled to distributions of principal on
such Distribution Date.
Credit Risk Management
Agreement : The agreement
between the Credit Risk Manager and the Servicer and/or Master
Servicer, dated as of June 29, 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 : 0.015% per
annum.
Credit Risk Manager
: The Murrayhill Company, a Colorado
corporation.
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 Custodial Agreement dated as
of June 1, 2005 among the JPMorgan Chase Bank, N.A., the Servicer
and the Trustee and the Custodial Agreement dated as of
June 1, 2005 among Wells Fargo Bank, N.A., the Servicer and
the Trustee.
Custodian : Each of JPMorgan Chase Bank, N.A., a national
banking association and Wells Fargo Bank, N.A., a national banking
association, or any successor thereto appointed pursuant to the
related Custodial Agreement.
Cut-off Date
: June 1, 2005.
Cut-off Date Principal
Balance : As to any
Mortgage Loan, the unpaid principal balance thereof as of the close
of business on the Cut-off Date after application of all Principal
Prepayments received prior to the Cut-off Date and scheduled
payments of principal due on or before the Cut-off Date, whether or
not received, but without giving effect to any installments of
principal received in respect of Due Dates after the Cut-off
Date.
Debt Service Reduction
: With respect to any Mortgage Loan,
a reduction by a court of competent jurisdiction in a proceeding
under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan that became final and non-appealable, except such a
reduction resulting from a Deficient Valuation or any other
reduction that results in a permanent forgiveness of
principal.
Deficient Valuation
: With respect to any Mortgage Loan,
a valuation by a court of competent jurisdiction of the Mortgaged
Property in an amount less than the then outstanding indebtedness
under such Mortgage Loan, or any reduction in the amount of
principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court that is final and
non-appealable in a proceeding under the Bankruptcy
Code.
Definitive
Certificates : As defined
in Section 6.06.
Deleted Mortgage Loan
: A Mortgage Loan replaced or to be
replaced by a Replacement Mortgage Loan.
Delinquent
: A Mortgage Loan is
“delinquent” if any payment due thereon is not made
pursuant to the terms of such Mortgage Loan by the close of
business on the day such payment is scheduled to be due. A Mortgage
Loan is “30 days delinquent” if such payment has not
been received by the close of business on the corresponding day of
the month immediately succeeding the month in which such payment
was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on
the 31st day of such month), then on the last day of such
immediately succeeding month. Similarly for “60 days
delinquent,” “90 days delinquent” and so
on.
Denomination
: With respect to each Certificate,
the amount set forth on the face thereof as the “Initial
Certificate Principal Balance of this
Certificate”.
Depositor : Nomura Asset Acceptance Corporation, a
Delaware corporation, or its successor in interest.
Depository
: The initial Depository shall be
The Depository Trust Company (“DTC”), the nominee of
which is Cede & Co., or any other organization registered as a
“clearing agency” pursuant to Section 17A of the
Exchange Act. The Depository shall initially be the registered
Holder of the Book-Entry Certificates. The Depository shall at all
times be a “clearing corporation” as defined in Section
8-102(a)(5) of the Uniform Commercial Code of the State of New
York.
Depository Agreement
: With respect to the Class of
Book-Entry Certificates, the agreement among the Depositor, the
Trustee and the initial Depository, dated as of the Closing Date,
substantially in the form of Exhibit I.
Depository Participant
: A broker, dealer, bank or other
financial institution or other Person for whom from time to time a
Depository effects book-entry transfers and pledges of securities
deposited with the Depository.
Determination Date
: With respect to any Distribution
Date, the 15th day of the month of such Distribution Date or, if
such 15th day is not a Business Day, the immediately preceding
Business Day.
Distribution Account
: The separate Eligible Account
created and maintained by the Securities Administrator pursuant to
Section 3.31 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-AP2”. Funds in the Distribution Account shall be held in
trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Distribution Date
: The twenty-fifth (25 th
) day of each calendar month after the initial issuance of the
Certificates, or if such twenty-fifth (25 th ) day is
not a Business Day, the next succeeding Business Day, commencing in
July 2005.
Due Date : As to any Mortgage Loan, the date in each
month on which the related Scheduled Payment is due, as set forth
in the related Mortgage Note.
Due Period
: For any Distribution Date, 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.
ERISA : The Employee Retirement Income Security Act of
1974, as amended.
ERISA Restricted
Certificate : Each of the
Class X, Class P and Residual Certificates.
Escrow Account
: Shall mean an account maintained
by the Servicer pursuant to Section 3.29. The Escrow Account shall
be an Eligible Account.
Excess Cap Payment
: With respect to any Distribution
Date, the excess, if any, of (1) the cap payments made by the Cap
Provider under the Cap Contract with respect to the Class A-1
Certificates over (2) the amount of the unpaid Net WAC Rate
Carryover Amounts attributable to the Class A-1 Certificates for
such Distribution Date.
Excess Liquidation
Proceeds : To the extent
not required by law to be paid to the related Mortgagor, the
excess, if any, of any Liquidation Proceeds with respect to a
Mortgage Loan over the Stated Principal Balance of such Mortgage
Loan and accrued and unpaid interest at the related Mortgage Rate
through the last day of the month in which the Mortgage Loan has
been liquidated.
Exchange Act
: Securities and Exchange Act of
1934, as amended.
Exemption : Prohibited Transaction Exemption 93-32, as
amended from time to time.
Extra Principal Distribution
Amount : With respect to
any Distribution Date, the lesser of (x) the Net Monthly Excess
Cashflow for such Distribution Date and (y) the
Overcollateralization Increase Amount for such Distribution
Date.
Fannie Mae
: Fannie Mae (formerly, Federal
National Mortgage Association), or any successor
thereto.
FDIC : The Federal Deposit Insurance Corporation, or
any successor thereto.
Final Recovery
Determination : With
respect to any defaulted Mortgage Loan or any REO Property (other
than a Mortgage Loan or REO Property purchased by the Seller, the
Depositor or the Master Servicer pursuant to or as contemplated by
Section 2.03(c) or Section 10.01), a determination made by 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.
Freddie Mac
: Federal Home Loan Mortgage
Corporation, or any successor thereto.
Indemnified Persons
: The Trustee, the Master Servicer,
the Securities Administrator, the Custodians, the Trust Fund and
their officers, directors, agents and employees and, with respect
to the Trustee, any separate co-trustee and its officers,
directors, agents and employees.
Initial Certificate Principal
Balance : With respect to
any Certificate, the Certificate Principal Balance of such
Certificate or any predecessor Certificate on the Closing
Date.
Insurance Policy
: With respect to any Mortgage Loan
included in the Trust Fund, any insurance policy, including all
riders and endorsements thereto in effect with respect to such
Mortgage Loan, including any replacement policy or policies for any
Insurance Policies.
Insurance Proceeds
: Proceeds paid in respect of the
Mortgage Loans pursuant to any Insurance Policy or any other
insurance policy covering a Mortgage Loan, to the extent such
proceeds are payable to the mortgagee under the Mortgage, 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 Carry Forward
Amount : With respect to
any Class of Certificates (other than the Class X, Class P and
Class R Certificates) and any Distribution Date, the amount, if
any, by which the Interest Distribution Amount for that Class of
Certificates for the immediately preceding Distribution Date
exceeded the actual amount distributed on such Class in respect of
interest on the immediately preceding Distribution Date, together
with any Interest Carry Forward Amount with respect to such Class
remaining unpaid from the previous Distribution Date.
Interest Determination
Date : Shall mean the
second LIBOR Business Day preceding the commencement of each
Accrual Period.
Interest Distribution
Amount : With respect to
any Class of Certificates (other than the Class P Certificates and
Class R Certificates) and any Distribution Date, an amount equal to
the interest accrued during the related Accrual Period at the
applicable Pass-Through Rate on the Certificate Principal Balance
(or Certificate Notional Balance) of such Certificate immediately
prior to such Distribution Date less such Certificate’s share
of any Net Interest Shortfall and the interest portion of any
Realized Losses on the Mortgage Loans allocated to such Certificate
pursuant to Section 1.02. The Interest Distribution Amount with
respect to each class of Certificates (other than the Class A-1
Certificates) is calculated on the basis of a 360-day year
consisting of twelve 30-day months. The Interest Distribution
Amount with respect to the Class A-1 Certificates is calculated on
the basis of a 360-day year and the actual number of days elapsed
in the related Accrual Period. No Interest Distribution Amount will
be payable with respect to any Class of Certificates after the
Distribution Date on which the outstanding Certificate Principal
Balance (or Certificate Notional Balance) of such Certificate has
been reduced to zero.
Interest Remittance
Amount : With respect to
any Distribution Date, that portion of the Available Distribution
Amount for such Distribution Date generally equal to (i) the sum,
without duplication, of (a) all scheduled interest during the
related Due Period with respect to the Mortgage Loans less the
Servicing Fee, the Credit Risk Management Fee and the fee payable
to any provider of lender-paid mortgage insurance, if any, (b) all
Advances relating to interest with respect to the Mortgage Loans
made on or prior to the related Remittance Date, (c) all
Compensating Interest with respect to the Mortgage Loans and
required to be remitted by the 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.
Last Scheduled Distribution
Date : With respect to
the Certificates (other than the Class A-IO Certificates), the
Distribution Date in May 2035 and with respect to the Class A-IO
Certificates, the Distribution Date in June 2007.
Latest Possible Maturity
Date : The Distribution
Date following the final scheduled maturity date of the Mortgage
Loan in the Trust Fund having the latest scheduled maturity date as
of the Cut-off Date. For purposes of the Treasury Regulations under
Code Section 860A through 860G, the latest possible maturity date
of each regular interest issued by REMIC I, REMIC II and REMIC III
shall be the Latest Possible Maturity Date.
LIBOR Business Day
: Shall mean any day other than a
Saturday or a Sunday or a day on which banking institutions in the
State of New York or in the city of London, England are required or
authorized by law to be closed.
Liquidated Loan
: With respect to any Distribution
Date, a defaulted Mortgage Loan that has been liquidated through
deed-in-lieu of foreclosure, foreclosure sale, trustee’s sale
or other realization as provided by applicable law governing the
real property subject to the related Mortgage and any security
agreements and as to which the Servicer has certified in the
related Prepayment Period in writing to the Securities
Administrator that it has made a Final Recovery
Determination.
Liquidation Proceeds
: Amounts, other than Insurance
Proceeds, received in connection with the partial or complete
liquidation of a Mortgage Loan, whether through trustee’s
sale,
foreclosure sale or otherwise, or in
connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received with respect to an REO
Property, less the sum of related unreimbursed Advances, Servicing
Fees, Master Servicing Fees and Servicing Advances and all expenses
of liquidation, including property protection expenses and
foreclosure and sale costs, including court and reasonable
attorneys fees.
Loan-to-Value Ratio
: The fraction, expressed as a
percentage, the numerator of which is the original principal
balance of the Mortgage Loan and the denominator of which is the
Appraised Value of the related Mortgaged Property.
Majority Class X
Certificateholder : The
Holder of a 50.01% or greater Percentage Interest in the Class X
Certificates.
Marker Rate
: With respect to the Class X
Certificates and any Distribution Date, a per annum rate equal to
two (2) times the weighted average of the Uncertificated REMIC II
Pass-Through Rates for REMIC II Regular Interest LTII-A1, REMIC II
Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC
II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5,
REMIC II Regular Interest LTII-M1, REMIC II Regular Interest
LTII-M2, REMIC II Regular Interest LTII-M3 and REMIC II Regular
Interest LTII-ZZ, with the rate on REMIC II Regular Interest
LTII-A1 subject to a cap equal to the lesser of (x) One-Month LIBOR
plus 0.12% per annum and (y) the Net WAC Rate Cap for the purpose
of this calculation; with the rate on REMIC II Regular Interest
LTII-A2 subject to a cap equal to the lesser of (x) 4.777% per
annum and (y) the Net WAC Rate Cap for the purpose of this
calculation; with the rate on REMIC II Regular Interest LTII-A3
subject to a cap equal to the lesser of (x) 5.034% per annum and
(y) the Net WAC Rate Cap for the purpose of this calculation; with
the rate on REMIC II Regular Interest LTII-A4 subject to a cap
equal to the lesser of (A) in the case of any Distribution
Date up to and including the Optional Termination Date, the lesser
of (x) 5.396% per annum and (y) the Net WAC Rate Cap and
(B) in the case of any Distribution Date after the Optional
Termination Date, the lesser of (x) 5.896 % per annum and (y) the
Net WAC Rate Cap for the purpose of this calculation; with the rate
on REMIC II Regular Interest LTII-A5 subject to a cap equal to the
lesser of (A) in the case of any Distribution Date up to and
including the Optional Termination Date, the lesser of (x) 4.976%
per annum and (y) the Net WAC Rate Cap and (B) in the case of any
Distribution Date after the Optional Termination Date, the lesser
of (x) 5.476% per annum and (y) the Net WAC Rate Cap for the
purpose of this calculation; with the rate on REMIC II Regular
Interest LTII-M1 subject to a cap equal to (A) in the case of any
Distribution Date up to and including the Optional Termination
Date, the lesser of (x) 5.342% per annum and (y) the Net WAC Rate
Cap and (B) in the case of any Distribution Date after the Optional
Termination Date, the lesser of (x) 5.842% per annum and (y) the
Net WAC Rate Cap for the purpose of this calculation; with the rate
on REMIC II Regular Interest LTII-M2 subject to a cap equal to (A)
in the case of any Distribution Date up to and including the
Optional Termination Date, the lesser of (x) 5.591% per annum and
(y) the Net WAC Rate Cap and (B) in the case of any Distribution
Date after the Optional Termination Date, the lesser of (x) 6.091%
per annum and (y) the Net WAC Rate Cap for the purpose of this
calculation; with the rate on REMIC II Regular Interest LTII-M3
subject to a cap equal to (A) in the case of any Distribution Date
up to and including the Optional Termination Date, the lesser of
(x) 5.889% per annum and (y) the Net WAC Rate Cap and (B) in the
case of any Distribution Date after the Optional Termination Date,
the lesser of (x) 6.389% per annum and (y) the Net WAC Rate Cap for
the
purpose of this calculation; and
with the rate on REMIC II Regular Interest LTII-ZZ subject to a cap
of zero for the purpose of this calculation; provided, however,
that for this purpose, the calculation of the Uncertificated REMIC
II Pass-Through Rate and the related cap with respect to REMIC II
Regular Interest LTII-A1 shall be multiplied by a fraction, the
numerator of which is the actual number of days in the Accrual
Period and the denominator of which is 30.
Master Servicer
: As of the Closing Date, Wells
Fargo Bank, N.A. and thereafter, its respective successors in
interest who meet the qualifications of this Agreement. The Master
Servicer and the Securities Administrator shall at all times be the
same Person or Affiliates.
Master Servicer
Certification : A written
certification signed by an officer of the Master Servicer that
complies with (i) the Sarbanes-Oxley Act of 2002, as amended from
time to time, and (ii) the February 21, 2003 Statement by the Staff
of the Division of Corporation Finance of the Securities and
Exchange Commission Regarding Compliance by Asset-Backed Issuers
with Exchange Act Rules 13a-14 and 15d-14, as in effect from time
to time; provided that if, after the Closing Date (a) the
Sarbanes-Oxley Act of 2002 is amended, (b) the Statement referred
to in clause (ii) is modified or superseded by any subsequent
statement, rule or regulation of the Securities and Exchange
Commission or any statement of a division thereof, or (c) any
future releases, rules and regulations are published by the
Securities and Exchange Commission from time to time pursuant to
the Sarbanes-Oxley Act of 2002, which in any such case affects the
form or substance of the required certification and results in the
required certification being, in the reasonable judgment of the
Master Servicer, materially more onerous than the form of the
required certification as of the Closing Date, the Master Servicer
Certification shall be as agreed to by the Master Servicer, the
Depositor and the Seller following a negotiation in good faith to
determine how to comply with any such new requirements.
Master Servicer
Default : One or more of
the events described in Section 8.01(b).
Master Servicer Fee
Rate : 0.0050% per
annum.
Master Servicing
Compensation : As defined
in Section 4.12.
Master Servicing Fee
: With respect to each Mortgage Loan
and for any calendar month, an amount equal to one twelfth of the
product of the Master Servicer Fee Rate multiplied by the Stated
Principal Balance of the Mortgage Loans as of the Due Date in the
preceding calendar month.
MERS : Mortgage Electronic Registration Systems,
Inc., a corporation organized and existing under the laws of the
State of Delaware, or any successor thereto.
MERS® System
: The system of recording transfers
of Mortgages electronically maintained by MERS.
Mezzanine Certificates
: Shall mean, collectively, the
Class M-1, Class M-2 and Class M-3 Certificates.
MIN : The Mortgage Identification Number for
Mortgage Loans registered with MERS on the MERS®
System.
MOM Loan : Any Mortgage Loan as to which MERS is acting
as the mortgagee of such Mortgage Loan, solely as nominee for the
originator of such Mortgage Loan and its successors and assigns, at
the origination thereof.
Monthly Statement
: The statement delivered to the
Certificateholders pursuant to Section 5.06.
Moody’s
: Moody’s Investors Service,
Inc. or its successor in interest.
Mortgage : The mortgage, deed of trust or other
instrument creating a first lien on or first priority ownership
interest in an estate in fee simple in real property securing a
Mortgage Note.
Mortgage File
: The Mortgage Loan Documents
pertaining to a particular Mortgage Loan and any additional
documents delivered to the Trustee to be added to the Mortgage File
pursuant to this Agreement.
Mortgage Loan
Documents : As defined in
Section 2.01.
Mortgage Loans
: Such of the Mortgage Loans
transferred and assigned to the Trustee pursuant to the provisions
hereof, as from time to time are held as a part of the Trust Fund
(including any REO Property), the mortgage loans so held being
identified in the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged
Property.
Mortgage Loan Purchase
Agreement : The Mortgage
Loan Purchase Agreement dated as of June 29, 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-1, 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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(ii)
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the Mortgage Rate in effect as of the Cut-off
Date;
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(iii)
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the Servicing Fee Rate;
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(iv)
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the Net Mortgage Rate in effect as of the
Cut-off Date;
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(v)
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the maturity date;
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(vi)
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the original principal balance;
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(vii)
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the Cut-off Date Principal Balance;
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(viii)
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the original term;
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(ix)
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the remaining term;
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(x)
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the property type;
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(xi)
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with respect to each MOM Loan, the related
MIN;
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(xii)
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the Custodian; and
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(xiii)
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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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Such schedule shall also set forth
the aggregate Cut-off Date Principal Balance for all of the
Mortgage Loans.
Mortgage Note
: The original executed note or
other evidence of indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage Rate
: The annual rate of interest borne
by a Mortgage Note.
Mortgaged Property
: The underlying property securing a
Mortgage Loan.
Mortgagor : The obligor on a Mortgage Note.
Net Interest
Shortfalls : Shall mean
Interest Shortfalls net of payments by the Servicer or the Master
Servicer in respect of Compensating Interest.
Net Monthly Excess
Cashflow : With respect
to any Distribution Date, the sum of (a) any Overcollateralization
Reduction Amount and (b) the excess of (x) the Available
Distribution Amount for such Distribution Date over (y) the sum for
such Distribution Date of (A) the aggregate amount of Senior
Interest Distribution Amounts payable to the Senior Certificates
and the Interest Distribution Amounts payable to the Mezzanine
Certificates and (B) the Principal Remittance Amount.
Net Mortgage Rate
: As to each Mortgage Loan, and at
any time, the per annum rate equal to the related Mortgage Rate
less the sum of (i) the Servicing Fee Rate, (ii) the Credit Risk
Management Fee Rate, the Master Servicer Fee Rate and (iii) the
rate at which the fee payable to any provider of lender-paid
mortgage insurance is calculated, if applicable.
Net WAC Rate Cap
: With respect to the Senior
Certificates (other than the Class A-IO Certificates) and the
Mezzanine Certificates, (i) from and including the Distribution
Date in July 2005 through and including the Distribution Date in
June 2006, (a) the weighted average of the
Net Mortgage Rates of the Mortgage
Loans, weighted based on their Stated Principal Balances as of the
first day of the calendar month preceding the month in which the
Distribution Date occurs minus 4.50% per annum times (b) a
fraction, the numerator of which is the Certificate Notional
Balance of the Class A-IO Certificates and the denominator of which
is the aggregate Stated Principal Balance of the Mortgage Loans as
of the first day of the calendar month preceding the month in which
the Distribution Date occurs, (ii) from and including the
Distribution Date in July 2006 through and including the
Distribution Date in June 2007, (a) the weighted average of the Net
Mortgage Rates of the Mortgage Loans, weighted based on their
Stated Principal Balances as of the first day of the calendar month
preceding the month in which the Distribution Date occurs minus
3.50% per annum and, times (b) a fraction, the numerator of which
is the Certificate Notional Balance of the Class A-IO Certificates
and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans as of the first day of the calendar
month preceding the month in which the Distribution Date occurs and
(iii) thereafter, the weighted average of the Net Mortgage Rates of
the Mortgage Loans, weighted based on their Stated Principal
Balances as of the first day of the calendar month preceding the
month in which the Distribution Date occurs; provided that the Net
WAC Rate Cap with respect to the Class A-1 Certificates shall be
multiplied by a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the Accrual
Period.
For federal income tax purposes, the
Net WAC Rate Cap, with respect to any Distribution Date, shall be
expressed as the weighted average of the Uncertificated REMIC II
Pass-Through Rates on each REMIC II Regular Interest (other than
REMIC II Regular Interest LTII-IO-A and REMIC II Regular Interest
LTII-IO-B) weighted on the basis of the Uncertificated Principal
Balance of the REMIC II Regular Interests and, with respect to the
Insured Certificates, minus the Insurer Premium Rate.
Net WAC Rate Carryover
Amount : With respect to
each class of Senior Certificates (other than the Class A-IO
Certificates) and the Mezzanine Certificates and any Distribution
Date on which the related Pass-Through Rate is reduced by the Net
WAC Rate Cap, an amount equal to the sum of (i) the excess of (x)
the amount of interest such Class would have been entitled to
receive on such Distribution Date if the Pass-Through Rate
applicable to such Class would not have been reduced by the Net WAC
Rate Cap on such Distribution Date over (y) the amount of interest
paid on such Distribution Date to such class plus (ii) the related
Net WAC Rate Carryover Amount for the previous Distribution Date
not previously distributed to such class.
Net WAC Reserve Fund
: Shall mean the segregated
non-interest bearing trust account created and maintained by the
Securities Administrator pursuant to Section 5.10
hereof.
Non-Book-Entry
Certificate : Any
Certificate other than a Book-Entry Certificate.
Nonrecoverable Advance
: Any portion of an Advance or
Servicing Advance previously made or proposed to be made by the
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 Class A-1 Certificates for the related
Accrual Period shall, in the absence of manifest error, be final
and binding. With respect to the first Accrual Period, One-Month
LIBOR shall equal 3.32563% per annum.
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, the 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 or the Master
Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar
functions.
Optional Termination
: The termination of the Trust Fund
created hereunder as a result of the purchase of all of the
Mortgage Loans and any related REO Property pursuant to Section
10.01.
Optional Termination
Date : The first
Distribution Date on which the Master Servicer may purchase, at its
option, the Mortgage Loans and related REO Properties as described
in Section 10.01.
OTS : The Office of Thrift Supervision or any
successor thereto.
Outstanding
: With respect to the Certificates
as of any date of determination, all Certificates theretofore
executed and authenticated under this Agreement except:
(a) Certificates
theretofore canceled by the Securities Administrator or delivered
to the Securities Administrator for cancellation; and
(b) Certificates
in exchange for which or in lieu of which other Certificates have
been executed and delivered by the Securities Administrator
pursuant to this Agreement.
Outstanding Mortgage
Loan : As of any date of
determination, a Mortgage Loan with a Stated Principal Balance
greater than zero that was not the subject of a Principal
Prepayment in full, and that did not become a Liquidated Loan,
prior to the end of the related Prepayment Period.
Overcollateralization
Amount : With respect to
any Distribution Date, the excess, if any, of (a) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period over (b) the aggregate Certificate
Principal Balance of the Senior Certificates (other than the
Class A-IO Certificates) and the Mezzanine Certificates on
such Distribution Date (after taking into account the payment of
100% of the Principal Remittance Amount on such Distribution
Date).
Overcollateralization Increase
Amount : With respect to
any Distribution Date, the excess, if any, of (a) the Required
Overcollateralization Amount over (b) the Overcollateralization
Amount on such Distribution Date.
Overcollateralization Reduction
Amount : With respect to
any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the excess, if any, of
(i) the Overcollateralization Amount for such Distribution Date
over (ii) the Required Overcollateralization Amount for such
Distribution Date.
Ownership Interest
: As to any Certificate, any
ownership interest in such Certificate including any interest in
such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate
: With respect to each Class of
Certificates, the applicable Pass-Through Rate for each Class as
set forth in the Preliminary Statement.
Percentage Interest
: With respect to any Certificate of
a specified Class, the Percentage Interest set forth on the face
thereof or the percentage obtained by dividing the Denomination of
such Certificate by the aggregate of the Denominations of all
Certificates of such Class.
Permitted Investments
: At any time, any one or more of
the following obligations and securities:
(i) direct
obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any
agency thereof, provided such obligations are unconditionally
backed by the full faith and credit of the United
States;
(ii) general
obligations of or obligations guaranteed by any state of the United
States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or such lower rating as will not
result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by each Rating Agency, as evidenced by
a signed writing delivered by each Rating Agency;
(iv) commercial
or finance company paper which is then receiving the highest
commercial or finance company paper rating of each Rating Agency,
or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each
Rating Agency, as evidenced by a signed writing delivered by each
Rating Agency;
(v) certificates
of deposit, demand or time deposits, or bankers’ acceptances
issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and
subject to supervision and examination by federal and/or state
banking authorities (including the Trustee or the Master Servicer
in its commercial banking capacity), provided that the commercial
paper and/or long term unsecured debt obligations of such
depository institution or trust company are then rated one of the
two highest long-term and the highest short-term ratings of each
such Rating Agency for such securities, or such lower ratings as
will not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any Rating Agency, as evidenced by
a signed writing delivered by each Rating Agency;
(vi) demand
or time deposits or certificates of deposit issued by any bank or
trust company or savings institution to the extent that such
deposits are fully insured by the FDIC;
(vii) guaranteed
reinvestment agreements issued by any bank, insurance company or
other corporation containing, at the time of the issuance of such
agreements, such terms and conditions as will not result in the
downgrading or withdrawal of the rating then assigned to the
Certificates by any such Rating Agency, as evidenced by a signed
writing delivered by each Rating Agency;
(viii) repurchase
obligations with respect to any security described in clauses (i)
and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in
clause (v) above;
(ix) securities
(other than stripped bonds, stripped coupons or instruments sold at
a purchase price in excess of 115% of the face amount thereof)
bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state
thereof which, at the time of such investment, have one of the two
highest long term ratings of each Rating Agency, or such lower
rating as will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by any Rating Agency, as
evidenced by a signed writing delivered by each Rating
Agency;
(x) units
of money market funds registered under the Investment Company Act
of 1940 including funds managed or advised by the Trustee, the
Master Servicer or an affiliate of either, having a rating by
S&P of AAAm-G, AAA-m, or AA-m, and if rated by Moody’s,
rated Aaa, Aa1 or Aa2;
(xi) short
term investment funds sponsored by any trust company or banking
association incorporated under the laws of the United States or any
state thereof (including any such fund managed or advised by the
Trustee, the Master Servicer or any affiliate thereof) which on the
date of acquisition has been rated by each Rating Agency in their
respective highest applicable rating category or such lower rating
as will not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by each Rating Agency, as
evidenced by a signed writing delivered by each Rating Agency;
and
(xii) such
other investments having a specified stated maturity and bearing
interest or sold at a discount acceptable to each Rating Agency as
will not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any Rating Agency, as evidenced by
a signed writing delivered by each Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency;
provided, however, that no
instrument described hereunder shall evidence either the right to
receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest
payments derived from obligations underlying such instrument and
the interest and principal payments with respect to such instrument
provide a yield to maturity at par greater than 120% of the yield
to maturity at par of the underlying obligations.
Permitted Transferee
: Any person other than (i) the
United States, any State or political subdivision thereof, any
possession of the United States or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International
Organization or any agency or instrumentality of either of the
foregoing, (iii) an organization (except certain farmers’
cooperatives described in Section 521 of the Code) that is exempt
from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in Section 860E(c)(1)
of the Code) with respect to any Residual Certificate, (iv) rural
electric and telephone cooperatives described in Section
1381(a)(2)(C) of the Code, (v) a Person that is not a citizen or
resident of the United States, a corporation, partnership (other
than a partnership that has any direct or indirect foreign
partners) or other entity (treated as a corporation or a
partnership for federal income tax purposes), created or organized
in or under the laws of the United States, any state thereof or the
District of Columbia, an estate whose income from sources without
the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States, or a trust
if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more
United States persons have authority to control all substantial
decisions of the trustor and (vi) any other Person based upon an
Opinion of Counsel (which shall not be an expense of the Trustee)
that states that the Transfer of an Ownership Interest in a
Residual Certificate to such Person may cause any REMIC to fail to
qualify as a REMIC at any time that any Certificates are
Outstanding. The terms “United States,”
“State” and “International Organization”
shall have the
meanings set forth in Section 7701
of the Code or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State
or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of Freddie
Mac, a majority of its board of directors is not selected by such
government unit.
Person : Any individual, corporation, partnership,
joint venture, association, joint–stock company, limited
liability company, trust, unincorporated organization or
government, or any agency or political subdivision
thereof.
Prepayment Assumption
: The assumed rate of prepayment, as
described in the Prospectus Supplement relating to each Class of
Publicly Offered Certificates.
Prepayment Charge
: With respect to any Principal
Prepayment, any prepayment premium, penalty or charge payable by a
Mortgagor in connection with any Principal Prepayment on a Mortgage
Loan pursuant to the terms of the related Mortgage Note (other than
any Servicer Prepayment Charge Payment Amount) as shown on the
Prepayment Charge Schedule.
Prepayment Charge
Schedule : As of any
date, the list of Mortgage Loans providing for a Prepayment Charge
included in the Trust Fund on such date, attached hereto as Exhibit
K (including the prepayment charge summary attached thereto). The
Depositor shall deliver or cause the delivery of the Prepayment
Charge Schedule to 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 related Master
Servicing Fee, (c) the Credit Risk Management Fee and (d) the fee
payable to any provider of lender-paid mortgage insurance, if
any.
Prepayment Period
: With respect to any Distribution
Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
Principal Distribution
Amount : With respect to
each Distribution Date, the sum of (i) Principal Funds, plus (ii)
the Extra Principal Distribution Amount for such Distribution Date
minus (iii) the amount of any Overcollateralization
Reduction Amount for such Distribution Date. In no event will the
Principal Distribution Amount with respect to any Distribution Date
be (x) less than zero or (y) greater than the then outstanding
aggregate Certificate Principal Balance of the Publicly Offered
Certificates.
Principal Funds
: With respect to any Distribution
Date, (i) the sum, without duplication, of (a) all scheduled
principal collected during the related Due Period, (b) all Advances
relating to principal made on or prior to the Remittance Date or,
with respect to the Trustee on the Distribution Date, (c) Principal
Prepayments exclusive of prepayment charges or penalties collected
during the related Prepayment Period, (iii) the Stated Principal
Balance of each Mortgage Loan that was repurchased by the Seller
pursuant to Sections 2.02, 2.03 and 3.24, (d) the aggregate of
all Substitution Adjustment Amounts for the related Determination
Date in connection with the substitution of Mortgage Loans pursuant
to Section 2.03(b), (e) amounts in respect of principal paid by the
Master Servicer pursuant to Section 10.01, (f) all Liquidation
Proceeds and Subsequent Recoveries collected during the related
Prepayment Period (to the extent such Liquidation Proceeds and
Subsequent Recoveries relate to principal), in each case to the
extent remitted by the Servicer to the Distribution Account
pursuant to this Agreement and (g) all Subsequent Recoveries minus
(ii) all amounts required to be reimbursed by the Trust pursuant to
Section 3.32 or as otherwise set forth in this Agreement or any
Custodial Agreement to the extent not reimbursed from the Interest
Remittance Amount.
Principal Prepayment
: Any Mortgagor payment or other
recovery of (or proceeds with respect to) principal on a Mortgage
Loan (including loans purchased or repurchased under
Sections 2.02, 2.03, 3.26 and 10.01 hereof) that is received
in advance of its scheduled Due Date and is not accompanied by an
amount as to interest representing scheduled interest due on any
Due Date in any month or months subsequent to the month of
prepayment. Partial Principal Prepayments shall be applied by the
Servicer in accordance with the terms of the related Mortgage
Note.
Principal Remittance
Amount : With respect to
any Distribution Date, the sum of the Principal Funds for such
Distribution Date.
Private Certificate
: Each of the Class X, Class P and
Class R Certificates.
Prospectus Supplement
: The Prospectus Supplement dated
June 27, 2005 relating to the offering of the Publicly Offered
Certificates.
Publicly Offered
Certificates : The Senior
Certificates and the Mezzanine Certificates.
PUD : A planned unit development.
Purchase Price
: With respect to any Mortgage Loan
required to be repurchased by the Seller pursuant to Section 2.02
or 2.03 hereof and as confirmed by an Officer’s Certificate
from the Seller to the Trustee, an amount equal to the sum of (i)
100% of the outstanding principal balance of the Mortgage Loan as
of the date of such purchase plus (ii) 30 days’ accrued
interest thereon at the applicable Net Mortgage Rate, plus any
portion of the Servicing Fee, Master Servicing Fee Servicing
Advances and Advances payable to the Servicer or Master Servicer,
as applicable, with respect to such Mortgage Loan plus (iii) any
costs and damages of the Trust Fund in connection with any
violation by such Mortgage Loan of any abusive or predatory lending
law, including any expenses incurred by the Trustee with respect to
such Mortgage Loan prior to the purchase thereof.
Rating Agency
: Each of S&P and Moody’s.
If any such organization or its successor is no longer in
existence, “Rating Agency” shall be a nationally
recognized statistical rating organization, or other comparable
Person, designated by the Depositor, notice of which designation
shall be given to the Trustee. References herein to a given rating
category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized Loss
: With respect to each Mortgage Loan
as to which a Final Recovery Determination has been made, an amount
(not less than zero) equal to (i) the Stated Principal Balance of
such Mortgage Loan as of the commencement of the calendar month in
which the Final Recovery Determination was made, plus (ii) accrued
interest from the Due Date as to which interest was last paid by
the Mortgagor through the end of the calendar month in which such
Final Recovery Determination was made, calculated in the case of
each calendar month during such period (A) at an annual rate equal
to the annual rate at which interest was then accruing on such
Mortgage Loan and (B) on a principal amount equal to the Stated
Principal Balance of such Mortgage Loan as of the close of business
on the Distribution Date during such calendar month, minus (iii)
the proceeds, if any, received in respect of such Mortgage Loan
during the calendar month in which such Final Recovery
Determination was made, net of amounts that are payable therefrom
to the Servicer pursuant to this Agreement.
With respect to any REO Property as
to which a Final Recovery Determination has been made, an amount
(not less than zero) equal to (i) the Stated Principal Balance of
the related Mortgage Loan as of the date of acquisition of such REO
Property on behalf of REMIC I, plus (ii) accrued interest from the
Due Date as to which interest was last paid by the Mortgagor in
respect of the related Mortgage Loan through the end of the
calendar month immediately preceding the calendar month in which
such REO Property was acquired, calculated in the case of each
calendar month during such period (A) at an annual rate equal to
the annual rate at which interest was then accruing on the related
Mortgage Loan and (B) on a principal amount equal to the Stated
Principal Balance of the related Mortgage Loan as of the close of
business on the Distribution Date during such calendar month, minus
(iii) the aggregate of all unreimbursed Advances and Servicing
Advances.
With respect to each Mortgage Loan
which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient
Valuation.
With respect to each Mortgage Loan
which has become the subject of a Debt Service Reduction, the
portion, if any, of the reduction in each affected Monthly Payment
attributable to a reduction in the Mortgage Rate imposed by a court
of competent jurisdiction. Each such Realized Loss shall be deemed
to have been incurred on the Due Date for each affected Monthly
Payment.
In addition, to the extent a
Servicer receives Subsequent Recoveries with respect to any
Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such Subsequent
Recoveries are applied to reduce the Certificate Principal Balance
of any Class of Certificates on any Distribution Date.
Record Date
: With respect to the Certificates
(other than the Class A-1 Certificates) and any Distribution Date,
the close of business on the last Business Day of the month
preceding the month in which such Distribution Date occurs. With
respect to the Class A-1 Certificates and any Distribution Date, so
long as the Class A-1 Certificates are Book-Entry Certificates, the
Business Day preceding such Distribution Date, and otherwise, the
close of business on the last Business Day of the month preceding
the month in which such Distribution Date occurs.
Reference Bank Rate
: With respect to any Accrual Period
shall mean the arithmetic mean, rounded upwards, if necessary, to
the nearest whole multiple of 0.03125%, of the offered rates for
United States dollar deposits for one month that are quoted by the
Reference Banks as of 11:00 a.m., New York City time, on the
related Interest Determination Date to prime banks in the London
interbank market for a period of one month in an amount
approximately equal to the aggregate Certificate Principal Balance
of the Class A-1 Certificates for such Accrual Period, provided
that at least two such Reference Banks provide such rate. If fewer
than two offered rates appear, the Reference Bank Rate will be the
arithmetic mean, rounded upwards, if necessary, to the nearest
whole multiple of 0.03125%, of the rates quoted by one or more
major banks in New York City, selected by the Securities
Administrator, as of 11:00 a.m., New York City time, on such date
for loans in United States dollars to leading European banks for a
period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of the Class A-1 Certificates for
such Accrual Period.
Reference Banks
: Shall mean leading banks selected
by the Securities Administrator and engaged in transactions in
Eurodollar deposits in the international Eurocurrency market (i)
with an established place of business in London, (ii) which have
been designated as such by the Securities Administrator and (iii)
which are not controlling, controlled by, or under common control
with, the Depositor, the Seller or the Servicer.
Regular Certificate
: Any Certificate other than a
Residual Certificate.
Relief Act
: The Servicemembers Civil Relief
Act of 2003, as amended from time to time or similar state or local
laws.
REMIC : A “real estate mortgage investment
conduit” within the meaning of Section 860D of the
Code.
REMIC I : The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder, with respect to which a REMIC election is
to
be made, consisting of (i) the
Mortgage Loans and all interest accruing and principal due with
respect thereto after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance thereof and all
related Prepayment Charges; (ii) the related Mortgage Files, (iii)
the Custodial Account (other than any amounts representing any
Servicer Prepayment Charge Payment Amount), the Distribution
Account, the Class P Certificate Account and such assets that are
deposited therein from time to time, together with any and all
income, proceeds and payments with respect thereto; (iv) property
that secured a Mortgage Loan and has been acquired by foreclosure,
deed in lieu of foreclosure or otherwise; (v) the mortgagee’s
rights under the Insurance Policies with respect to the Mortgage
Loans; (vi) the rights under the Mortgage Loan Purchase Agreement,
and (vii) all proceeds of the foregoing, including proceeds of
conversion, voluntary or involuntary, of any of the foregoing into
cash or other liquid property. Notwithstanding the foregoing,
however, REMIC I specifically excludes (i) all payments and other
collections of principal and interest due on the Mortgage Loans on
or before the Cut-off Date, (ii) all Prepayment Charges payable in
connection with Principal Prepayments made before the Cut-off Date,
(iii) the Net WAC Reserve Fund and (iv) the Cap
Contract.
REMIC I Regular Interest
LTI-1 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-1 shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IO-A : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IO-A shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IO-B : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IO-B shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IO-C : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IO-C shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IO-D : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IO-D shall accrue interest at the
related Uncertificated REMIC
I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IO-E : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IO-E shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IO-F : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IO-F shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IO-G : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IO-G shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IO-H : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IO-H shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-P : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-P shall be entitled to distributions
of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement
hereto.
REMIC I Regular
Interests : REMIC I
Regular Interest LTI-1, REMIC I Regular Interest LTI-IO-A, REMIC I
Regular Interest LTI-IO-B, REMIC I Regular Interest LTI-IO-C, REMIC
I Regular Interest LTI-IO-D, REMIC I Regular Interest LTI-IOE,
REMIC I Regular Interest LTI-IO-F, REMIC I Regular Interest
LTI-IO-G, REMIC I Regular Interest LTI-IO-H and REMIC I Regular
Interest LTI-P.
REMIC II : The segregated pool of assets consisting of
all of the REMIC I Regular Interests conveyed in trust to the
Trustee, for the benefit of REMIC III, as holder of the
REMIC
II Regular Interests, and the Class
R-2 Interest pursuant to Section 2.07, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC II Interest Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to (a) the product of (i)
the aggregate Stated Principal Balance of the Mortgage Loans and
REO Properties then outstanding and (ii) the Uncertificated REMIC
II Pass-Through Rate for REMIC II Regular Interest II-LTAA minus
the Marker Rate, divided by (b) 12.
REMIC II Overcollateralization
Amount : With respect to
any date of determination, (i) 1% of the aggregate Uncertificated
Principal Balances of the REMIC II Regular Interests minus (ii) the
aggregate of the Uncertificated Principal Balances of REMIC II
Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC
II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4,
REMIC II Regular Interest LTII-A5, REMIC II Regular Interest
LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular
Interest LTII-M3 and REMIC II Regular Interest LTII-P, in each case
as of such date of determination.
REMIC II Principal Loss
Allocation Amount : With
respect to any Distribution Date, an amount equal to (a) the
product of (i) the aggregate Stated Principal Balance of the
Mortgage Loans and REO Properties then outstanding and (ii) 1 minus
a fraction, the numerator of which is two times the aggregate of
the Uncertificated Principal Balances of REMIC II Regular Interest
LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular
Interest LTII-A3, REMIC II Regular Interest LTII-A4, REMIC II
Regular Interest LTII-A5, REMIC II Regular Interest LTII-M1, REMIC
II Regular Interest LTII-M2 and REMIC II Regular Interest LTII-M3
and the denominator of which is the aggregate of the Uncertificated
Principal Balances of REMIC II Regular Interest LTII-A1, REMIC II
Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC
II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5,
REMIC II Regular Interest LTII-M1, REMIC II Regular Interest
LTII-M2, REMIC II Regular Interest LTII-M3 and REMIC II Regular
Interest LTII-ZZ.
REMIC II Regular
Interests : REMIC II
Regular Interest LTII-AA, REMIC II Regular Interest LTII-A1, REMIC
II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3,
REMIC II Regular Interest LTII-A4, REMIC II Regular Interest
LTII-A5, REMIC II Regular Interest LTII-M1, REMIC II Regular
Interest LTII-M2, REMIC II Regular Interest LTII-M3, REMIC II
Regular Interest LTII-IO-A, REMIC II Regular Interest LTII-IO-B,
REMIC II Regular Interest LTII-ZZ and REMIC II Regular Interest
LTII-P.
REMIC II Regular Interest
LTII-AA: One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-AA shall accrue interest at the
related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC II Regular Interest
LTII-A1 : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-A1 shall accrue interest at the
related Uncertificated
REMIC II Pass-Through Rate in effect
from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement
hereto.
REMIC II Regular Interest
LTII-A2 : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-A2 shall accrue interest at the
related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC II Regular Interest
LTII-A3 : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-A3 shall accrue interest at the
related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC II Regular Interest
LTII-A4 : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-A4 shall accrue interest at the
related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC II Regular Interest
LTII-A5 : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-A5 shall accrue interest at the
related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC II Regular Interest
LTII-IO-A : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-IO-A shall accrue interest as
provided herein and shall not be entitled to distributions of
principal.
REMIC II Regular Interest
LTII-IO-B : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-IO-B shall accrue interest as
provided herein and shall not be entitled to distributions of
principal.
REMIC II Regular Interest
LTII-M1 : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-M1 shall accrue interest at the
related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
REMIC II Regular Interest
LTII-M2 : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-M2 shall accrue interest at the
related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC II Regular Interest
LTII-M3 : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-M3 shall accrue interest at the
related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC II Regular Interest
LTII-P : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-P shall be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC II Regular Interest
LTII-ZZ : One of the
separate non-certificated beneficial ownership interests in REMIC
II issued hereunder and designated as a Regular Interest in REMIC
II. REMIC II Regular Interest LTII-ZZ shall accrue interest at the
related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC II Regular Interest LTII-ZZ
Maximum Interest Deferral Amount : With respect to any Distribution Date, the
excess of (i) accrued interest at the Uncertificated REMIC II
Pass-Through Rate applicable to REMIC II Regular Interest LTII-ZZ
for such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC II Regular Interest LTII-ZZ minus the
REMIC II Overcollateralization Amount, in each case for such
Distribution Date, over (ii) Uncertificated Accrued Interest on
REMIC II Regular Interest LTII-A1, REMIC II Regular Interest
LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular
Interest LTII-A4, REMIC II Regular Interest LTII-A5, REMIC II
Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2 and
REMIC II Regular Interest LTII-M3 for such Distribution Date, with
the rate on each such REMIC II Regular Interest subject to a cap
equal to the related Pass-Through Rate.
REMIC II Required
Overcollateralization Amount : 1% of the Required Overcollateralization
Amount.
REMIC III : The segregated pool of assets consisting of
all of the REMIC II Regular Interests conveyed in trust to the
Trustee, for the benefit of the REMIC III
Certificateholders
pursuant to Section 2.07, and all
amounts deposited therein, with respect to which a separate REMIC
election is to be made.
REMIC III Certificate
: Any Regular Certificate or Class R
Certificate.
REMIC III
Certificateholder : The
Holder of any REMIC III Certificate.
REMIC Opinion
: Shall mean an Opinion of Counsel
to the effect that the proposed action will not have an adverse
affect on any REMIC created hereunder.
REMIC Provisions
: Provisions of the federal income
tax law relating to real estate mortgage investment conduits, which
appear at Sections 860A through 860G of Subchapter M of
Chapter 1 of the Code, and related provisions, and proposed,
temporary and final regulations and published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state
laws.
REMIC Regular Interest
: A REMIC I Regular Interest, REMIC
II Regular Interest or a Regular Certificate.
Remittance Date
: Shall mean the eighteenth (18
th ) day of the month and if such day is not a Business
Day, the immediately preceding Business Day.
REO Property
: A Mortgaged Property acquired by
the Servicer through foreclosure or deed-in-lieu of foreclosure in
connection with a defaulted Mortgage Loan.
Replacement Mortgage
Loan : A Mortgage Loan or
Mortgage Loans in the aggregate substituted by the Seller for a
Deleted Mortgage Loan, which must, on the date of such
substitution, as confirmed in a request for release in accordance
with the terms of the Custodial Agreement, (i) have a Stated
Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess
of, and not less than 90% of, the Stated Principal Balance of the
Deleted Mortgage Loan; (ii) have a fixed Mortgage Rate not less
than or more than 1% per annum higher than the Mortgage Rate of the
Deleted Mortgage Loan; (iii) have the same or higher credit quality
characteristics than that of the Deleted Mortgage Loan; (iv) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan; (v) have a remaining term to maturity no greater than (and
not more than one year less than) that of the Deleted Mortgage
Loan; (vi) not permit conversion of the Mortgage Rate from a fixed
rate to a variable rate; (vii) be secured by a first lien on the
related Mortgaged Property; (viii) constitute the same occupancy
type as the Deleted Mortgage Loan or be owner occupied; and (ix)
comply with each representation and warranty set forth in the
Mortgage Loan Purchase Agreement.
Required Insurance
Policy : With respect to
any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Required Overcollateralization
Amount : With respect to
any Distribution Date prior to the Stepdown Date, 0.65%of the
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, and with respect to any Distribution Date thereafter, the
greater of (i) 1.30% of the Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period
(after
giving effect to scheduled payments
of principal due during the related Due Period to the extent
received or advanced, unscheduled collections of principal received
during the related Prepayment Period and after reduction for
Realized Losses incurred during the related Prepayment Period) and
(ii) 0.35% of the Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date.
Required Overcollateralization
Percentage : With respect
to any Distribution Date, a percentage equal to (a) the Required
Overcollateralization Amount divided by (b) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the
related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment
Period).
Residual Certificates
: The Class R
Certificates.
Responsible Officer
: With respect to the Trustee or
Securities Administrator, any Vice President, any Assistant Vice
President, the Secretary, any Assistant Secretary, any Trust
Officer, any other officer customarily performing functions similar
to those performed by any of the above designated officers or other
officers of the Trustee or Securities Administrator specified by
the Trustee or Securities Administrator having direct
responsibility over this Agreement and customarily performing
functions similar to those performed by any one of the designated
officers, as to whom, with respect to a particular matter, such
matter is referred because of such officer’s knowledge of and
familiarity with the particular subject.
S&P : Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc. or its successor in
interest.
Scheduled Payment
: The scheduled monthly payment on a
Mortgage Loan due on any Due Date allocable to principal and/or
interest on such Mortgage Loan.
Securities Act
: The Securities Act of 1933, as
amended.
Securities
Administrator : As of the
Closing Date, Wells Fargo Bank, N.A. and thereafter, its respective
successors in interest that meet the qualifications of this
Agreement. The Securities Administrator and the Master Servicer
shall at all times be the same Person or Affiliates.
Seller : Nomura Credit & Capital, Inc., a Delaware
corporation, and its successors and assigns, in its capacity as
seller of the Mortgage Loans to the Depositor.
Senior Certificates
: The Class A-1, Class A-2, Class
A-3, Class A-4, Class A-5 and Class A-IO Certificates.
Senior Interest Distribution
Amount :
With respect to any Distribution
Date and any Class of Senior Certificates will be equal to the
Interest Distribution Amount for such Distribution Date for such
Class and the Interest Carry Forward Amount, if any, for such
Distribution Date for such Class.
Senior Principal Distribution
Amount : With respect to
any Distribution Date which occurs (i) prior to the Stepdown Date
or on or after the Stepdown Date if a Trigger Event is in effect,
the Principal Distribution Amount or (ii) on or after the Stepdown
Date if a Trigger Event is not in effect for that Distribution
Date, the lesser of:
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•
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the Principal Distribution Amount
for that Distribution Date; and
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•
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the excess, if any, of (A) the
aggregate Certificate Principal Balance of the Senior Certificates
immediately prior to that Distribution Date over (B) the positive
difference between (i) the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Due Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the product of (x) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the
related Due Period (after reduction for Realized Losses incurred
during the related Prepayment Period) and (y) the sum of 12.00% and
the Required Overcollateralization Percentage.
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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.
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
: 0.25% per annum.
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 by the Servicer to the Trustee, the Master Servicer and
the Depositor on the Closing Date, as such list may from time to
time be amended.
Startup Day
: The Startup Day for each REMIC
formed hereunder shall be the Closing Date.
Stated Principal
Balance : With respect to
any Mortgage Loan or related REO Property and any Distribution
Date, the Cut-off Date Principal Balance thereof minus the sum of
(i) the principal portion of the Scheduled Payments due with
respect to such Mortgage Loan during each Due Period ending prior
to such Distribution Date (and irrespective of any delinquency in
their payment), (ii) all Principal Prepayments with respect to such
Mortgage Loan received prior to or during the related Prepayment
Period, and all Liquidation Proceeds to the extent applied by the
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 July 2008 and (y) the first Distribution Date
on which the Credit Enhancement Percentage of the Senior
Certificates (calculated for this purpose only after taking into
account distributions of principal on the Mortgage Loans, but prior
to any distribution of the Principal Distribution Amount to the
holders of the Certificates then entitled to distributions of
principal on the Distribution Date) is greater than or equal to
approximately 13.30%.
Subsequent Recoveries
: Shall mean all amounts in respect
of principal received by the 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.
Tax Matters Person
: The person designated as
“tax matters person” in the manner provided under
Treasury regulation § 1.860F-4(d) and temporary Treasury
regulation § 301.6231(a)(7)-1T. The holder of the
greatest Percentage Interest in a Class of Residual Certificates
shall be the Tax Matters Person for the related REMIC. The
Securities Administrator, or any successor thereto or assignee
thereof shall serve as tax administrator hereunder and as agent for
the related Tax Matters Person.
Transfer Affidavit
: As defined in Section
6.02(c).
Transfer : Any direct or indirect transfer or sale of any
Ownership Interest in a Certificate.
Trigger Event
: With respect to any Distribution
Date, a Trigger Event is in effect if (x) the percentage obtained
by dividing (i) the aggregate Stated Principal Balance of Mortgage
Loans delinquent sixty (60) days or more (including Mortgage Loans
in foreclosure or discharged in bankruptcy or any REO Property) by
(ii) the aggregate Stated Principal Balance of the Mortgage Loans,
in each case, as of the last day of the previous calendar month,
exceeds 50.00% of the Credit Enhancement Percentage of the Senior
Certificates for the prior Distribution Date, or (y) the aggregate
amount of Realized Losses incurred since the Cut-off Date through
the last day of the related Due Period divided by the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date exceeds the applicable percentages set forth below with
respect to such Distribution Date:
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Distribution Date
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Percentage
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July 2008 to June 2009
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1.00%
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July 2009 to June 2010
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1.50%
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July 2010 to June 2012
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2.00%
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July 2012 and thereafter
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2.25%
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*The cumulative loss percentages set
forth above are applicable to the first Distribution Date in the
corresponding range of Distribution Dates. The cumulative loss
percentage for each succeeding Distribution Date in a range
increases incrementally by 1/12 of the positive difference between
the percentage applicable to the first Distribution Date in that
range and the percentage applicable to the first Distribution Date
in the succeeding range.
Trust Fund
: Collectively, the assets of REMIC
I, REMIC II, REMIC III, the Net WAC Reserve Fund and the Cap
Contract.
Trustee : HSBC Bank USA, National Association, a
national banking association, not in its individual capacity, but
solely in its capacity as trustee for the benefit of the
Certificateholders under this Agreement, and any successor thereto,
and any corporation or national banking association resulting from
or surviving any consolidation or merger to which it or its
successors may be a party and any successor trustee as may from
time to time be serving as successor trustee hereunder.
Uncertificated Accrued
Interest : With respect
to each Uncertificated REMIC Regular Interest on each Distribution
Date, an amount equal to one month’s interest at the related
Uncertificated REMIC I Pass-Through Rate or Uncertificated REMIC II
Pass-Through Rate, as applicable, on the Uncertificated Principal
Balance or Uncertificated Notional Amount, as applicable, of such
Uncertificated REMIC Regular Interest. In each case, Uncertificated
Accrued Interest will be reduced by any Prepayment Interest
Shortfalls and shortfalls resulting from application of the Relief
Act (allocated to such REMIC Regular Interests as set forth in
Sections 1.02 and 5.07).
Uncertificated Notional
Amount : With respect to
REMIC II Regular Interest LTII-IO-A and REMIC II Regular Interest
LTII-IO-B and (i) each Distribution Date from and including
the
1 st Distribution to and
including the 6 th Distribution Date, the aggregate
Uncertificated Principal Balances of REMIC I Regular Interest
LTI-IO-A through REMIC I Regular Interest LTI-IO-H, (ii) each
Distribution Date from and including the 7 th
Distribution to and including the 10 th Distribution
Date, the aggregate Uncertificated Principal Balances of REMIC I
Regular Interest LTI-IO-B through REMIC I Regular Interest
LTI-IO-H, (iii) each Distribution Date from and including the 11
th Distribution Date to and including the 13
th Distribution Date, the aggregate Uncertificated
Principal Balances of REMIC I Regular Interest LTI-IO-C through
REMIC I Regular Interest LTI-IO-H, (iv) each Distribution Date from
and including the 14 th Distribution Date to and
including the 15 th Distribution Date, the aggregate
Uncertificated Principal Balances of REMIC I Regular Interest
LTI-IO-D through REMIC I Regular Interest LTI-IO-H, (v) each
Distribution Date from and including the 16 th
Distribution to and including the 19 th Distribution
Date, the aggregate Uncertificated Principal Balances of REMIC I
Regular Interest LTI-IO-E through REMIC I Regular Interest
LTI-IO-H, (vi) each Distribution Date from and including the 20
th Distribution to and including the 21 st
Distribution Date, the aggregate Uncertificated Principal Balances
of REMIC I Regular Interest LTI-IO-F through REMIC I Regular
Interest LTI-IO-H, (vii) each Distribution Date from and including
the 22 nd Distribution to and including the 23
rd Distribution Date, the aggregate Uncertificated
Principal Balances of REMIC I Regular Interest LTI-IO-G and REMIC I
Regular Interest LTI-IO-H, and (viii) the 24 th
Distribution Date, the aggregate Uncertificated Principal Balance
of REMIC I Regular Interest LTI-IO-H, and (ix) each Distribution
Date thereafter, $0.
Uncertificated Principal
Balance : With respect to
each REMIC Regular Interest (other than REMIC II Regular Interest
LTII-IO-A and REMIC II Regular Interest LTII-IO-B), the principal
amount of such REMIC Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC Regular Interest (other than REMIC II Regular
Interest LTII-IO-A and REMIC II Regular Interest LTII-IO-B) shall
equal the amount set forth in the Preliminary Statement hereto as
its initial Uncertificated Principal Balance. On each Distribution
Date, the Uncertificated Principal Balance of each REMIC Regular
Interest shall be reduced by all distributions of principal made on
such REMIC Regular Interest on such Distribution Date pursuant to
Sections 5.07 and 5.08 and, if and to the extent necessary and
appropriate, shall be further reduced on such Distribution Date by
Realized Losses as provided in Sections 5.07 and 5.08. The
Uncertificated Principal Balance of each REMIC Regular Interest
shall never be less than zero. REMIC I Regular Interest LTII-IO-A
and REMIC II Regular Interest LTII-B will not have Uncertificated
Principal Balances.
Uncertificated REMIC I
Pass-Through Rate : A per
annum rate equal to the average of the Net Mortgage Rates of the
Mortgage Loans as of the first day of the related Due Period,
weighted on the basis of the Stated Principal Balances as of the
first day of the related Due Period. REMIC I Regular Interest LTI-P
will not accrue interest.
Uncertificated REMIC II
Pass-Through Rate : With
respect to REMIC II Regular Interest LTII-AA, REMIC II Regular
Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II
Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4, REMIC
II Regular Interest LTII-A5, REMIC II Regular Interest LTII-A6,
REMIC II Regular Interest LTII-M1, REMIC II Regular Interest
LTII-M2, REMIC II Regular Interest LTII-M3 and REMIC II Regular
Interest LTII-ZZ, a per annum rate (but not less than zero) equal
to the weighted average of: (x) with respect to REMIC I Regular
Interest LTI-1, the Uncertificated REMIC I Pass-Through Rate
for
such REMIC I Regular Interest for
each such Distribution Date, and (y) with respect to REMIC I
Regular Interest LTI-IO-A through REMIC I Regular Interest LTI-IO-H
for each Distribution Date listed below, the weighted average of
the rates listed below for each such REMIC I Regular Interest
listed below, weighted on the basis of the Uncertificated Principal
Balance of each such REMIC I Regular Interest:
|
Distribution Date
|
REMIC I Regular
Interests
|
Rate
|
|
1
|
LTI-IO-A through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
2
|
LTI-IO-A through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
3
|
LTI-IO-A through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
4
|
LTI-IO-A through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
5
|
LTI-IO-A through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
6
|
LTI-IO-A through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
7
|
LTI-IO-B through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
|
LTI-IO-A
|
Uncertificated REMIC I Pass-Through
Rate
|
|
8
|
LTI-IO-B through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
|
LTI-IO-A
|
Uncertificated REMIC I Pass-Through
Rate
|
|
9
|
LTI-IO-B through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
|
LTI-IO-A
|
Uncertificated REMIC I Pass-Through
Rate
|
|
10
|
LTI-IO-B through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
|
LTI-IO-A
|
Uncertificated REMIC I Pass-Through
Rate
|
|
11
|
LTI-IO-C through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
|
LTI-IO-A and LTI-IO-B
|
Uncertificated REMIC I Pass-Through
Rate
|
|
12
|
LTI-IO-C through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 4.50%
|
|
|
LTI-IO-A and LTI-IO-B
|
Uncertificated REMIC I Pass-Through
Rate
|
|
13
|
LTI-IO-C through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A and LTI-IO-B
|
Uncertificated REMIC I Pass-Through
Rate
|
|
14
|
LTI-IO-D through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-C
|
Uncertificated REMIC I Pass-Through
Rate
|
|
15
|
LTI-IO-D through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-C
|
Uncertificated REMIC I Pass-Through
Rate
|
|
16
|
LTI-IO-E through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-D
|
Uncertificated REMIC I Pass-Through
Rate
|
|
17
|
LTI-IO-B5 through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-D
|
Uncertificated REMIC I Pass-Through
Rate
|
|
18
|
LTI-IO-E through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-D
|
Uncertificated REMIC I Pass-Through
Rate
|
|
19
|
LTI-IO-F through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-E
|
Uncertificated REMIC I Pass-Through
Rate
|
|
20
|
LTI-IO-F through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-E
|
Uncertificated REMIC I Pass-Through
Rate
|
|
21
|
LTI-IO-F through LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-E
|
Uncertificated REMIC I Pass-Through
Rate
|
|
22
|
LTI-IO-G and LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-F
|
Uncertificated REMIC I Pass-Through
Rate
|
|
23
|
LTI-IO-G and LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-F
|
Uncertificated REMIC I Pass-Through
Rate
|
|
24
|
LTI-IO-H
|
(a) Uncertificated REMIC I
Pass-Through Rate over (b) 3.50%
|
|
|
LTI-IO-A through LTI-IO-G
|
Uncertificated REMIC I Pass-Through
Rate
|
|
25 and thereafter
|
LTI-IO-A through LTI-IO-H
|
Uncertificated REMIC I Pass-Through
Rate
|
With respect to REMIC II Regular
Interest LTII-IO-A, (i) for the first twelve distribution dates,
1.00% and (ii) thereafter, 0.00%. With respect to REMIC II Regular
Interest LTII-IO-B, (i) for the first twenty-four distribution
dates, 3.50% and (ii) thereafter, 0.00%. REMIC II Regular Interest
LTII-P will not accrue interest.
Uncertificated REMIC Regular
Interest : The REMIC I
Regular Interests and the REMIC II Regular Interests.
Voting Rights
: The portion of the voting rights
of all the Certificates that is allocated to any Certificate for
purposes of the voting provisions hereunder. Voting Rights shall be
allocated (i) 93% to the Certificates (other than the Class A-IO,
Class X, Class P and the Residual Certificates), (ii) 3% to the
Class X Certificates, (iii) 1% to the Class P Certificates, (iv) 1%
to the Class R Certificates and (v) 2% to the Class A-IO
Certificates until the Distribution Date in June 2007 and
thereafter such percentage of voting rights shall be allocated to
the remaining Classes of Publicly Offered Certificates. The
allocation among the Certificates other than the Class A-IO, Class
X, Class P and Class R Certificates shall be in proportion to the
Certificate Principal Balance of each Class relative to the
Certificate Principal Balance of all other such Classes. Voting
Rights will be allocated among the Certificates of the Class A-IO,
Class X, Class P and Class R Certificates shall be in
accordance with their respective Percentage Interests.
|
Section 1.02
|
Allocation of Certain Interest
Shortfalls .
|
For purposes of calculating the
amount of the Interest Distribution Amount for the Senior
Certificates, Mezzanine Certificates and Class X Certificates for
any Distribution Date, (1) the aggregate amount of any Net Interest
Shortfalls in respect of the Mortgage Loans for any Distribution
Date shall first reduce the Interest Distribution Amount payable to
the Class M-3 Certificates, second, reduce the Interest
Distribution Amount payable to the Class M-2 Certificates, third,
reduce the Interest Distribution Amount payable to the Class M-1
Certificates and fourth, reduce the Interest Distribution Amount
payable to the Senior Certificates, on a pro rata basis
based on, and to the extent of, one month’s interest at the
then applicable respective Pass-Through Rate on the respective
Certificate Principal Balance or Certificate Notional Balance, as
applicable of each such Certificate and (2) the aggregate amount of
any Realized Losses allocated to the Mezzanine Certificates and Net
WAC Rate Carryover Amount paid to the Senior Certificates (other
than the Class A-IO Certificates) and the Mezzanine Certificates
incurred for any Distribution Date shall be allocated to the Class
X Certificates based on, and to the extent of, one month’s
interest at the then applicable Pass-Through Rate on the
Certificate Notional Balance thereof on any Distribution
Date.
For purposes of calculating the
amount of Uncertificated Accrued Interest for the REMIC I Regular
Interests for any Distribution Date, the aggregate amount of any
Net Interest Shortfalls incurred in respect of the Mortgage Loans
for any Distribution Date shall be allocated first, to REMIC I
Regular Interest LTI-1, to the extent of one month’s interest
at the then applicable respective Uncertificated REMIC I
Pass-Through Rate on the Uncertificated Principal Balance of each
such REMIC I Regular Interest; and then, to REMIC I Regular
Interest LTI-IO-A, REMIC I Regular Interest LTI-IO-B, REMIC I
Regular Interest LTI-IO-C, REMIC I Regular Interest LTI-IO-D, REMIC
I Regular Interest LTI-IO-E, REMIC I Regular Interest
LTI-IO-F,
REMIC I Regular Interest LTI-IO-G
and REMIC I Regular Interest LTI-IO-H, in each case to the extent
of one month’s interest at the then applicable respective
Uncertificated REMIC I Pass-Through Rate on the respective
Uncertificated Principal Balance of each such REMIC I Regular
Interest.
For purposes of calculating the
amount of Uncertificated Accrued Interest for the REMIC II Regular
Interests for any Distribution Date, the aggregate amount of any
Net Interest Shortfalls incurred in respect of the Mortgage Loans
for any Distribution Date shall be allocated among REMIC II Regular
Interest LTII-AA, REMIC II Regular Interest LTII-A1, REMIC II
Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC
II Regular Interest LTII-A4, REMIC II Regular Interest LTII-A5,
REMIC II Regular Interest LTII-M1, REMIC II Regular Interest
LTII-M2, REMIC II Regular Interest LTII-M3 and REMIC II Regular
Interest LTII-ZZ, pro rata based on, and to the extent of, one
month’s interest at the then applicable respective
Uncertificated REMIC II Pass-Through Rate on the respective
Uncertificated Principal Balance of each such REMIC II Regular
Interest.
ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND
WARRANTIES
|
Section 2.01
|
Conveyance of Trust
Fund .
|
The Seller hereby sells, transfers,
assigns, sets over and otherwise conveys to the Depositor, without
recourse, all the right, title and interest of the Seller in and to
the assets in the Trust Fund.
The Seller has entered into this
Agreement in consideration for the purchase of the Mortgage Loans
by the Depositor and has agreed to take the actions specified
herein.
The Depositor, concurrently with the
execution and delivery hereof, hereby sells, transfers, assigns,
sets over and otherwise conveys to the Trustee for the use and
benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Trust
Fund.
Concurrently with the execution and
delivery of this Agreement, the Depositor does hereby assign to the
Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, to the extent of the Mortgage Loans sold under
the Mortgage Loan Purchase Agreement. 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.
|
Section 2.02
|
Acceptance of the Mortgage
Loans .
|
(a) Based
on the initial trust receipt received by it from the related
Custodian pursuant to the related Custodial Agreement, the Trustee
acknowledges receipt, subject to the provisions of Section 2.01
hereof and Section 2 of the related Custodial Agreement, of the
Mortgage Loan Documents and all other assets included in the
definition of “REMIC I” under clauses (i), (ii) (iii),
(v) and (vi) (to the extent of amounts deposited into the
Distribution Account) and declares that it holds (or the related
Custodian on its behalf holds) and will hold such documents and the
other documents delivered to it constituting a Mortgage Loan
Document, and that it holds (or the related Custodian on its behalf
holds) or will hold all such assets and such other assets included
in the definition of “REMIC I” in trust for the
exclusive use and benefit of all present and future
Certificateholders.
(b) In
conducting the review of the Mortgage Files in accordance with the
related Custodial Agreement, the related Custodian on the
Trustee’s behalf will ascertain whether all required
documents have been executed and received and whether those
documents relate to the Mortgage Loans identified in Exhibit B to
this Agreement, as supplemented. If the related Custodian finds any
document constituting part of the Mortgage File not to have been
executed or received, or to be unrelated to the Mortgage Loans
identified in Exhibit B, the Seller shall correct or cure any such
defect or, if prior to the end of the second anniversary of the
Closing Date, the Seller may substitute for the related Mortgage
Loan a Replacement Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth
in Section 2.03 or shall deliver to the Trustee an Opinion of
Counsel to the effect that such defect does not materially or
adversely affect the interests of the Certificateholders in such
Mortgage Loan within sixty (60) days from the date of notice from
the related Custodian of the defect and if the Seller fails to
correct or cure the defect or deliver such opinion within such
period, the Seller will, subject to Section 2.03, within ninety
(90) days from the notification of the related Custodian purchase
such Mortgage Loan at the Purchase Price; provided, however, that
if such defect relates solely to the inability of the Seller to
deliver the Mortgage, assignment thereof to the related Custodian,
or intervening assignments thereof with evidence of recording
thereon because such documents have been submitted for recording
and have not been returned by the applicable jurisdiction, the
Seller shall not be required to purchase such Mortgage Loan if the
Seller delivers such documents promptly upon receipt, but in no
event later than 360 days after the Closing Date.
(c) No
later than 180 days after the Closing Date, the related Custodian
on the Trustee’s behalf will review, for the benefit of the
Certificateholders, the Mortgage Files and will execute and deliver
or cause to be executed and delivered to the Seller and the
Trustee, a final
trust receipt substantially in the
form annexed to the related Custodial Agreement. In conducting such
review, the related Custodian on the Trustee’s behalf and in
accordance with the terms of the related Custodial Agreement will
ascertain whether each document required to be recorded has been
returned from the recording office with evidence of recording
thereon and the related Custodian on the Trustee’s behalf has
received either an original or a copy thereof, as required in the
related Custodial Agreement. If the related Custodian finds that
any document with respect to a Mortgage Loan has not been received,
or is unrelated to the Mortgage Loans identified in Exhibit B or
appears to be defective on its face, the related Custodian shall
note such defect in the exception report attached the final trust
receipt issued pursuant to the related Custodial Agreement and the
Seller shall correct or cure any such defect or, if prior to the
end of the second anniversary of the Closing Date, the Seller may
substitute for the related Mortgage Loan a Replacement Mortgage
Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03 or shall
deliver to the Trustee an Opinion of Counsel to the effect that
such defect does not materially or adversely affect the interests
of Certificateholders in such Mortgage Loan within 60 days from the
date of notice from the Trustee of the defect and if the Seller is
unable within such period to correct or cure such defect, or to
substitute the related Mortgage Loan with a Replacement Mortgage
Loan or to deliver such opinion, the Seller shall, subject to
Section 2.03, within 90 days from the notification of the Trustee,
purchase such Mortgage Loan at the Purchase Price; provided,
however, that if such defect relates solely to the inability of the
Seller to deliver the Mortgage, assignment thereof to the Trustee
or intervening assignments thereof with evidence of recording
thereon, because such documents have not been returned by the
applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan, if the Seller delivers such documents
promptly upon receipt, but in no event later than 360 days after
the Closing Date.
(d) In
the event that a Mortgage Loan is purchased by the Seller in
accordance with subsections 2.02(a) or (b) above or Section 2.03,
the Seller shall remit the applicable Purchase Price to the
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
related Custodial Agreement) with respect to such Mortgage Loan,
the related Custodian, on behalf of the Trustee, will release to
the Seller the related Mortgage File and the Trustee shall execute
and deliver all instruments of transfer or assignment, without
recourse, furnished to it by the Seller, as are necessary to vest
in the Seller title to and rights under the Mortgage Loan. Such
purchase shall be deemed to have occurred on the date on which the
deposit into the Custodial Account was made. The Trustee shall
promptly notify the Rating Agencies of such repurchase. The
obligation of the Seller to cure, repurchase or substitute for any
Mortgage Loan as to which a defect in a constituent document exists
shall be the sole remedies respecting such defect available to the
Certificateholders or to the Trustee on their behalf. The Seller
shall promptly reimburse the Trustee for any expenses incurred by
the Trustee in respect of enforcing the remedies for such
breach.
(e) The
Seller shall deliver to the related Custodian the Mortgage Note and
other documents constituting the Mortgage File with respect to any
Replacement Mortgage Loan, which the related Custodian will review
as provided in the related Custodial Agreement, provided, that the
Closing Date referred to therein shall instead be the date of
delivery of the Mortgage File with respect to each Replacement
Mortgage Loan.
|
Section 2.03
|
Representations, Warranties and
Covenants of 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 N) 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 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.
(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 th
