NOMURA ASSET ACCEPTANCE
CORPORATION,
Depositor
NOMURA CREDIT & CAPITAL,
INC.,
Seller
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
Master Servicer and Securities
Administrator
And
HSBC BANK USA, NATIONAL
ASSOCIATION
Trustee
____________________
POOLING AND SERVICING
AGREEMENT
Dated as of May 1, 2005
________________________________________
NOMURA ASSET ACCEPTANCE
CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-WF1
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
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Section 1.01
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Defined Terms.
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Section 1.02
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Allocation of Certain Interest
Shortfalls.
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ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND WARRANTIES
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Section 2.01
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Conveyance of Trust Fund.
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Section 2.02
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Acceptance of the Mortgage
Loans.
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Section 2.03
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Representations, Warranties and
Covenants of the Seller and the Master Servicer.
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Section 2.04
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Representations and Warranties of
the Depositor.
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Section 2.05
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Delivery of Opinion of Counsel in
Connection with Substitutions and Repurchases.
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Section 2.06
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Issuance of the REMIC I Regular
Interests and Class R Certificates.
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Section 2.07
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Conveyance of the REMIC I Regular
Interests.
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Section 2.08
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Issuance of Residual
Certificates.
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Section 2.09
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Establishment of Trust.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE
MORTGAGE LOANS; ACCOUNTS
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Section 3.01
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The Master Servicer.
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Section 3.02
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REMIC-Related Covenants.
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Section 3.03
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Monitoring of Servicer.
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Section 3.04
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Fidelity Bond.
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Section 3.05
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Power to Act; Procedures.
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Section 3.06
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Due-on-Sale Clauses; Assumption
Agreements.
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Section 3.07
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Release of Mortgage
Files.
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Section 3.08
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Documents, Records and Funds in
Possession of Master Servicer To Be Held for Trustee.
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Section 3.09
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Standard Hazard Insurance and Flood
Insurance Policies.
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Section 3.10
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Presentment of Claims and Collection
of Proceeds.
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Section 3.11
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Maintenance of the Primary Mortgage
Insurance Policies.
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Section 3.12
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Trustee to Retain Possession of
Certain Insurance Policies and Documents.
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Section 3.13
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Realization Upon Defaulted
Loans.
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Section 3.14
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Compensation for the Master
Servicer.
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Section 3.15
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REO Property.
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Section 3.16
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Annual Officer’s Certificate
as to Compliance.
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Section 3.17
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Annual Independent
Accountant’s Servicing Report.
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Section 3.18
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Reports Filed with Securities and
Exchange Commission.
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Section 3.19
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UCC.
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Section 3.20
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Obligation of the Master Servicer in
Respect of Prepayment Interest Shortfalls.
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Section 3.21
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Reserved.
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Section 3.22
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Protected Accounts.
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Section 3.23
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Distribution Account.
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Section 3.24
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Permitted Withdrawals and Transfers
from the Distribution Account.
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Section 3.25
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Optional Purchase of Defaulted
Mortgage Loans.
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Section 3.26
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Enforcing Obligations of the
Servicer.
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Section 3.27
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Duties of the Credit Risk Manager;
Termination.
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Section 3.28
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Limitation Upon Liability of the
Credit Risk Manager.
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ARTICLE IV
RESERVED
ARTICLE V
ADVANCES AND
DISTRIBUTIONS
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Section 5.01
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Advances.
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Section 5.02
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Reserved.
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Section 5.03
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REMIC Distributions.
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Section 5.04
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Distributions.
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Section 5.05
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[Reserved].
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Section 5.06
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Allocation of Realized
Losses.
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Section 5.07
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Monthly Statements to
Certificateholders.
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Section 5.08
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REMIC Designations and REMIC
Allocations.
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Section 5.09
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Class P Certificate
Account.
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Section 5.10
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Net WAC Reserve Fund.
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ARTICLE VI
THE CERTIFICATES
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Section 6.01
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The Certificates.
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Section 6.02
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Certificate Register; Registration
of Transfer and Exchange of Certificates.
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Section 6.03
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Mutilated, Destroyed, Lost or Stolen
Certificates.
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Section 6.04
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Persons Deemed Owners.
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Section 6.05
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Access to List of
Certificateholders’ Names and Addresses.
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Section 6.06
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Book-Entry Certificates.
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Section 6.07
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Notices to Depository.
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Section 6.08
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Definitive Certificates.
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Section 6.09
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Maintenance of Office or
Agency.
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ARTICLE VII
THE DEPOSITOR AND THE MASTER
SERVICER
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Section 7.01
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Liabilities of the Depositor and the
Master Servicer.
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Section 7.02
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Merger or Consolidation of the
Depositor or the Master Servicer.
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Section 7.03
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Indemnification of the
Depositor.
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Section 7.04
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Limitations on Liability of the
Depositor, the Master Servicer and Others.
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Section 7.05
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Limitation on Resignation of the
Master Servicer.
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Section 7.06
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Assignment of Master
Servicing.
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Section 7.07
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Rights of the Depositor in Respect
of the Master Servicer.
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ARTICLE VIII
DEFAULT; TERMINATION OF MASTER
SERVICER
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Section 8.01
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Master Servicer Events of
Default.
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Section 8.02
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Trustee to Act; Appointment of
Successor.
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Section 8.03
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Notification to
Certificateholders.
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Section 8.04
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Waiver of Master Servicer
Defaults.
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ARTICLE IX
CONCERNING THE TRUSTEE AND THE
SECURITIES ADMINISTRATOR
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Section 9.01
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Duties of Trustee and Securities
Administrator.
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Section 9.02
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Certain Matters Affecting Trustee
and Securities Administrator.
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Section 9.03
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Trustee and Securities Administrator
not Liable for Certificates or Mortgage Loans.
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Section 9.04
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Trustee and Securities Administrator
May Own Certificates.
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Section 9.05
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Fees and Expenses of Trustee and
Securities Administrator.
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Section 9.06
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Eligibility Requirements for Trustee
and Securities Administrator.
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Section 9.07
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Resignation and Removal of Trustee
and Securities Administrator.
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Section 9.08
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Successor Trustee or Securities
Administrator.
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Section 9.09
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Merger or Consolidation of Trustee
or Securities Administrator.
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Section 9.10
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Appointment of Co-Trustee or
Separate Trustee.
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Section 9.11
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Appointment of Office or
Agency.
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Section 9.12
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Representations and
Warranties.
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Section 9.13
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Tax Matters.
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ARTICLE X
TERMINATION
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Section 10.01
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Termination upon Liquidation or
Repurchase of all Mortgage Loans.
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Section 10.02
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Final Distribution on the
Certificates.
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Section 10.03
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Additional Termination
Requirements.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
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Section 11.01
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Amendment.
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Section 11.02
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Recordation of Agreement;
Counterparts.
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Section 11.03
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Governing Law.
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Section 11.04
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Intention of Parties.
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Section 11.05
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Notices.
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Section 11.06
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Severability of
Provisions.
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Section 11.07
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Assignment.
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Section 11.08
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Limitation on Rights of
Certificateholders.
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Section 11.09
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Certificates Nonassessable and Fully
Paid.
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Exhibits
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Exhibit A-1
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Form of Class I-A
Certificates
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Exhibit A-2
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Form of Class
II-A-[1A][1B][2][3][4][5] Certificates
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Exhibit A-3
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Form of Class II-M-[1][2][3]
Certificates
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Exhibit A-4
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Form of Class P
Certificates
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Exhibit A-5
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Form of Class R
Certificates
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Exhibit A-6
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Form of Class X
Certificates
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Exhibit B
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Mortgage Loan Schedule
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Exhibit C
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Reserved
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Exhibit D
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Form of Transfer
Affidavit
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Exhibit E
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Form of Transferor
Certificate
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Exhibit F
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Form of Investment Letter (Non-Rule
144A)
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Exhibit G
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Form of Rule 144A Investment
Letter
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Exhibit H
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Reserved
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Exhibit I
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DTC Letter of
Representations
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Exhibit J
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Schedule of Mortgage Loans with Lost
Notes
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Exhibit K
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Prepayment Charge
Schedule
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Exhibit L
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Appendix E of the Standard &
Poor’s Glossary For File
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Format For LEVELS® Version 5.6
Revised
POOLING AND SERVICING AGREEMENT,
dated as of May 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 (“Master
Servicer”) and securities administrator (“Securities
Administrator”) 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 (other than
the Net WAC Reserve Fund and the Cap Contracts) 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-I Interest will represent the sole class of
“residual interests” in REMIC I for purposes of the
REMIC Provisions (as defined herein) under federal income tax law.
The following table irrevocably sets forth the designation, the
Uncertificated REMIC I Pass-Through Rate, the Initial
Uncertificated Principal Balance, and for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC I
Regular Interests. None of the REMIC I Regular Interests will be
certificated.
|
|
Initial Uncertificated
Principal Balance
|
Uncertificated
REMIC I
Pass-Through Rate
|
Assumed Final Distribution Date
(1)
|
|
LTI-AA
|
$ 236,984,440.00
|
(2)
|
March 25, 2035
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LTI-IA
|
$ 900,115.00
|
(2)
|
March 25, 2035
|
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LTI-IIA1A
|
$ 282,655.00
|
(2)
|
March 25, 2035
|
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LTI-IIA1B
|
$ 375,000.00
|
(2)
|
March 25, 2035
|
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LTI-IIA2
|
$ 333,425.00
|
(2)
|
March 25, 2035
|
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LTI-IIA3
|
$ 102,865.00
|
(2)
|
March 25, 2035
|
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LTI-IIA4
|
$ 127,200.00
|
(2)
|
March 25, 2035
|
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LTI-IIA5
|
$ 145,810.00
|
(2)
|
March 25, 2035
|
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LTI-M1
|
$ 60,455.00
|
(2)
|
March 25, 2035
|
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LTI-M2
|
$ 48,365.00
|
(2)
|
March 25, 2035
|
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LTI-M3
|
$ 35,060.00
|
(2)
|
March 25, 2035
|
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LTI-ZZ
|
$ 2,425,467.14
|
(2)
|
March 25, 2035
|
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LTI-P
|
$ 100.00
|
(3)
|
March 25, 2035
|
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LTI-1SUB
|
$ 1,200.23
|
(2)
|
March 25, 2035
|
|
LTI-1GRP
|
$ 19,202.54
|
(2)
|
March 25, 2035
|
|
LTI-2SUB
|
$ 1,822.53
|
(2)
|
March 25, 2035
|
|
LTI-2GRP
|
$ 29,161.63
|
(2)
|
March 25, 2035
|
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LTI-XX
|
$ 241,769,470.21
|
(2)
|
March 25, 2035
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii)
of the Treasury regulations, the Distribution Date in the month
following the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the “latest possible
maturity date” for each REMIC I Regular Interest.
|
|
(2)
|
Calculated in accordance with the
definition of “Uncertificated REMIC I Pass-Through
Rate” herein.
|
|
(3)
|
REMIC I Regular Interest LTI-P will
not be entitled to distributions of interest.
|
REMIC II
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as
“REMIC II”. The Class R-II Interest will represent the
sole class of “residual interests” in REMIC II for
purposes of the REMIC Provisions. The following table irrevocably
sets forth the Class designation, Pass-Through Rate and Initial
Certificate Principal Balance for each Class of Certificates that
represents the “regular interests” in REMIC II created
hereunder:
|
|
Initial Certificate
Principal Balance
|
|
Assumed Final Distribution Date
(1)
|
|
Class I-A
|
$ 180,023,000.00
|
Class I-A Pass-Through Rate
|
March 25, 2035
|
|
Class II-A-1A
|
$ 56,531,000.00
|
Class II-A-1A Pass-Through Rate
|
March 25, 2035
|
|
Class II-A-1B
|
$ 75,000,000.00
|
Class II-A-1B Pass-Through Rate
|
March 25, 2035
|
|
Class II-A-2
|
$ 66,685,000.00
|
Class II-A-2 Pass-Through Rate
|
March 25, 2035
|
|
Class II-A-3
|
$ 20,573,000.00
|
Class II-A-3 Pass-Through Rate
|
March 25, 2035
|
|
Class II-A-4
|
$ 25,440,000.00
|
Class II-A-4 Pass-Through Rate
|
March 25, 2035
|
|
Class II-A-5
|
$ 29,162,000.00
|
Class II-A-5 Pass-Through Rate
|
March 25, 2035
|
|
Class M-1
|
$ 12,091,000.00
|
Class M-1 Pass-Through Rate
|
March 25, 2035
|
|
Class M-2
|
$ 9,673,000.00
|
Class M-2 Pass-Through Rate
|
March 25, 2035
|
|
Class M-3
|
$ 7,012,000.00
|
Class M-3 Pass-Through Rate
|
March 25, 2035
|
|
Class X (2)
|
$ 1,451,714.29
|
Class X Pass-Through Rate
|
March 25, 2035
|
|
Class P
|
$ 100.00
|
N/A (3)
|
March 25, 2035
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii)
of the Treasury regulations, the Distribution Date in the second
month following the maturity date for the Mortgage Loan with the
latest maturity date has been designated as the “latest
possible maturity date” for each Class of
Certificates.
|
|
(2)
|
The Class X Certificates will not accrue
interest on their Certificate Principal Balance, but will accrue
interest at the Class X Pass-Through Rate on the Certificate
Notional Balance of the Class X Certificates outstanding from time
to time which shall equal the aggregate of the Uncertificated
Principal Balances of the REMIC I Regular Interests (other than
REMIC I Regular Interest LTI-P).
|
|
3)
|
The Class P Certificates will not be
entitled to distributions of interest.
|
In consideration of the mutual
agreements herein contained, the Depositor, the Seller, the Master
Servicer, the Securities Administrator 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 : Any of the Distribution Accounts or Protected
Accounts.
Accrual Period
: With respect to the Certificates
(other than the Class II-A-1A, Class II-A-1B, 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 II-A-1A Certificates and
Class II-A-1B 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. All calculations of interest
on the Certificates (other than the Class II-A-1A, Class II-A-1B,
Class P and Class R Certificates) will be based on a 360-day year
consisting of twelve 30-day months. All calculations of interest on
the Class II-A-1A Certificates and Class II-A-1B Certificates will
be made based on a 360-day year and the actual number of days
elapsed in the related Accrual Period.
Advance : An advance of delinquent payments of principal
or interest in respect of a Mortgage Loan required to be made by
the Servicer pursuant to Section 5.01 or by the Trustee in its
capacity as Successor Servicer pursuant to
Section 5.01.
Agreement : This Pooling and Servicing Agreement and any
and all amendments or supplements hereto made in accordance with
the terms herein.
Aggregate Loan Balance
: With respect to the Mortgage Loans
and any Distribution Date, the aggregate of the Stated Principal
Balances of the Mortgage Loans as of the last day of the related
Due Period.
Amount Held for Future
Distribution : As to any
Distribution Date, the aggregate amount held in the Distribution
Account at the close of business on the immediately preceding
Determination Date on account of (i) all Scheduled Payments or
portions thereof received in respect of the related Mortgage Loans
due after the related Due Period and (ii) Principal Prepayments and
Liquidation Proceeds received in respect of the related Mortgage
Loans after the last day of the related Prepayment
Period.
Appraised Value
: With respect to any Mortgage Loan
originated in connection with a refinancing, the appraised value of
the Mortgaged Property based upon the appraisal made at the time of
such refinancing or, with respect to any other Mortgage Loan, the
lesser of (x) the appraised value of the Mortgaged Property based
upon the appraisal made by a fee appraiser at the time of the
origination of the Mortgage Loan, and (y) the sales price of the
Mortgaged Property at the time of such origination.
Assignment Agreement
: Shall mean the Assignment,
Assumption and Recognition Agreement, dated as of May 26, 2005,
among the Seller, the Depositor and the Servicer, pursuant to which
the Servicing Agreement was assigned to the Depositor.
Assumed Final Distribution
Date : The Distribution
Date in March 2035.
Authorized Servicer
Representative : Any
officer of the Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name and
facsimile signature appear on a list of servicing officers
furnished to the Trustee by the Servicer on the Closing Date, as
such list may from time to time be amended.
Available Distribution
Amount : shall mean the
sum of the Interest Remittance Amount and Principal
Funds.
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 State of Maryland, the State of
Minnesota, the city in which any Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive
order to be closed.
Cap Contracts
: The cap contract between the
Trustee and the Cap Provider, for the benefit of the Holders of the
Class II-A-1A Certificates and the cap contract between the Trustee
and the Cap Provider, for the benefit of the Holders of the Class
II-A-1B 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
and delivered by the Trustee in substantially the forms attached
hereto as Exhibits A-1 through A-6.
Certificate Notional
Balance : With respect to
the Class X Certificates and any Distribution Date, the
Uncertificated Principal Balance of the REMIC I Regular Interests
(other than REMIC I Regular Interest I-LTP) for such Distribution
Date. As of the Closing Date, the Certificate Notional Balance of
the Class X Certificates is equal to $483,641,614.29.
Certificate Owner
: With respect to a Book-Entry
Certificate, the Person that is the beneficial owner of such
Book-Entry Certificate.
Certificate Principal
Balance : As to any
Publicly Offered Certificate or Class P Certificate and as of any
Distribution Date, the Initial Certificate Principal Balance of
such Certificate less (i) the sum of (a) all amounts distributed
with respect to such Certificate in reduction of the Certificate
Principal Balance thereof on previous Distribution Dates and (b)
with respect to any Class of Subordinate Certificates, any
reductions in the Certificate Principal Balance of such Certificate
deemed to have occurred in connection with the allocations of
Realized Losses, if any, plus (ii) with respect to the Subordinate
Certificates, any Subsequent Recoveries added to the Certificate
Principal Balance of any such Certificate pursuant to
Section 5.06(e), in each case up to the amount of Realized
Losses previously allocated to such Class. With respect to the
Class X Certificates and any date of determination, the excess, if
any, of (i) the then Aggregate Loan Balance over (ii) the then
aggregate Certificate Principal Balance of the Publicly Offered
Certificates. References herein to the Certificate Principal
Balance of a Class of Certificates shall mean the Certificate
Principal Balances of all Certificates in such Class.
Certificate Register
: The register maintained pursuant
to Section 6.02.
Certificateholder or
Holder : The person in
whose name a Certificate is registered in the Certificate Register
(initially, Cede & Co., as nominee for the Depository, in the
case of any Book-Entry Certificates).
Class : All Certificates bearing the same Class
designation as set forth in Section 6.01.
Class I-A Certificate
: Any Certificate designated as a
“Class I-A 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 I-A
Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class I-A Pass-Through
Rate : With respect to
any Distribution Date, a per annum rate equal to the weighted
average of the Net Mortgage Rates of the Group I Mortgage
Loans.
Class II-A-1A
Certificate : Any
Certificate designated as a “Class II-A-1A Certificate”
on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to the Percentage Interest of distributions
provided for the Class II-A-1A Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class II-A-1A Pass-Through
Rate : With respect to
any Distribution Date, the lesser of (i) One-Month LIBOR plus 0.10%
per annum and (ii) the applicable Net WAC Pass-Through Rate for
such Distribution Date.
Class II-A-1B
Certificate : Any
Certificate designated as a “Class II-A-1B Certificate”
on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to the Percentage Interest of distributions
provided for the Class II-A-1B Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class II-A-1B Pass-Through
Rate : With respect to
any Distribution Date, the lesser of (i) One-Month LIBOR plus 0.11%
per annum and (ii) the applicable Net WAC Pass-Through Rate for
such Distribution Date.
Class II-A-2
Certificate : Any
Certificate designated as a “Class II-A-2 Certificate”
on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to its Percentage Interest of distributions
provided for the Class II-A-2 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class II-A-2 Pass-Through
Rate : With respect to
any Distribution Date, the lesser of (i) 4.786% per annum and (ii)
the applicable Net WAC Pass-Through Rate for such Distribution
Date.
Class II-A-3
Certificate : Any
Certificate designated as a “Class II-A-3 Certificate”
on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to its Percentage Interest of distributions
provided for the Class II-A-3 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class II-A-3 Pass-Through
Rate : With respect to
any Distribution Date, the lesser of (i) 5.100% per annum and (ii)
the applicable Net WAC Pass-Through Rate for such Distribution
Date.
Class II-A-4
Certificate : Any
Certificate designated as a “Class II-A-4 Certificate”
on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to its Percentage Interest of distributions
provided for the Class II-A-4 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class II-A-4 Pass-Through
Rate : Shall mean the
lesser of (i)(a) with respect to any Distribution Date which occurs
on or prior to the Optional Termination Date, 5.593%] per annum and
(b) with respect to each Distribution Date which occurs thereafter,
5.093% per annum and (ii) the applicable Net WAC Pass-Through Rate
for such Distribution Date.
Class II-A-5
Certificate : Any
Certificate designated as a “Class II-A-5 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 II-A-5 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class II-A-5 Pass-Through
Rate : Shall mean the
lesser of (i)(a) with respect to any Distribution Date which occurs
on or prior to the Optional Termination Date, 5.159% per annum and
(b) with respect to each Distribution Date which occurs thereafter,
5.659% per annum and (ii) the applicable Net WAC Pass-Through Rate
for such Distribution Date.
Class II-A-5 Lockout Principal
Distribution Amount :
With respect to any Distribution Date will be an amount equal to
the lesser of (i) the Group II Senior Principal Distribution Amount
for such Distribution Date and (ii) the Class II-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 II-A-5 Certificates and
the denominator of which is the aggregate Certificate Principal
Balance of all of the Group II Certificates, in each case
immediately prior to such Distribution Date and (y) the Group II
Senior Principal Distribution Amount for such Distribution
Date.
Class II-A-5 Lockout Distribution
Percentage : With respect
to each Distribution Date, the applicable percentage set forth
below:
|
|
Class II-A-5
Lockout
Distribution
Percentage
|
|
June 2005 through and including May
2008
|
0%
|
|
June 2008 through and including May
2010
|
45%
|
|
June 2010 through and including May
2011
|
80%
|
|
June 2011 through and including May
2012
|
100%
|
|
June 2012 and thereafter
|
300%
|
Class M-1 Certificate
: Any Certificate designated as a
“Class M-1 Certificate” on the face thereof, in the
form of A-3 hereto, representing the right to its Percentage
Interest of distributions provided for the Class M-1 Certificates
as set forth herein and evidencing a Regular Interest in REMIC
II.
Class M-1 Pass-Through
Rate : Shall mean the
lesser of (i)(a) with respect to each Distribution Date which
occurs on or prior to the Optional Termination Date, 5.457% per
annum and (b) with respect to each Distribution Date which occurs
thereafter, 5.957% per annum and (ii) the applicable Net WAC
Pass-Through Rate 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 (i) the Principal Distribution Amount for that
Distribution Date remaining after distribution of the Senior
Principal Distribution Amount and (ii) the excess, if any, of (A)
the aggregate Certificate Principal Balance of the Class M-1
Certificates immediately prior to such Distribution Date over (B)
the positive difference between (1) 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 (2) 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 6.90% 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 II.
Class M-2 Pass-Through
Rate : Shall mean the
lesser of (i)(a) with respect to each Distribution Date which
occurs on or prior to the Optional Termination Date, 5.755% per
annum and (b) with respect to each Distribution Date which occurs
thereafter, 6.255% per annum and (ii) the applicable Net WAC
Pass-Through Rate 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 (i) 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 (ii) the excess, if any, of (A) the
aggregate Certificate Principal Balance of the Class M-2
Certificates immediately prior to such Distribution Date over (B)
the positive difference between (1) 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 (2) 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 2.90% 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 II.
Class M-3 Pass-Through
Rate : Shall mean the
lesser of (i)(a) with respect to each Distribution Date which
occurs on or prior to the Optional Termination Date, 6.000% per
annum and (b) with respect to each Distribution Date which occurs
thereafter, 6.500% per annum and (ii) the applicable Net WAC
Pass-Through Rate 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 (i) 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 (ii) 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 (1) 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 (2) 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-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class P Certificates as
set forth herein and evidencing a Regular Interest in REMIC
II.
Class P Certificate
Account : The Eligible
Account established and maintained by the Securities Administrator
pursuant to Section 5.10.
Class R Certificate
: Any Certificate designated a
“Class R Certificate” on the face thereof, in
substantially the form set forth in Exhibit A-5 hereto, evidencing
the Class R-I Interest and the Class R-II Interest.
Class R-I Interest
: The uncertificated residual
interest in REMIC I.
Class R-II Interest
: The uncertificated residual
interest in REMIC II.
Class X Certificate
: Any Certificate designated as a
“Class X Certificate” on the face thereof, in the form
of Exhibit A-6 hereto, representing the right to the Percentage
Interest of distributions provided for the Class X Certificates as
set forth herein and evidencing a Regular Interest in
REMIC II.
Class X Pass-Through
Rate : With respect to
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 (L) below, and
the denominator of which is the aggregate of the Uncertificated
Principal Balances of REMIC I Regular Interest LTI-AA, REMIC I
Regular Interest LTI-IA, REMIC I Regular Interest LTI-IIA1A, REMIC
I Regular Interest LTI-IIA1B, REMIC I Regular Interest LTI-IIA2,
REMIC I Regular Interest LTI-IIA3, REMIC I Regular Interest
LTI-IIA4, REMIC I Regular Interest LTI-IIA5, REMIC I Regular
Interest LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I Regular
Interest LTI-M3 and REMIC I Regular Interest LTI-ZZ. For purposes
of calculating the Pass-Through Rate for the Class X Certificates,
the numerator is equal to the sum of the following
components:
(A) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-AA minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-AA;
(B) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IA minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-IA;
(C) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIA1A minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIA1A;
(D) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIA1B minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIA1B;
(E) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIA2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-IIA2;
(F) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIA3, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIA3;
(G) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIA4, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIA4;
(H) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIA5, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIA5;
(I) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M1;
(J) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M2;
(K) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M3 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M3; and
(L) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-ZZ minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-ZZ.
Cleanup Call
: As defined in
Section 11.01.
Closing Date
: May 26, 2005.
Code : The Internal Revenue Code of 1986, including
any successor or amendatory provisions.
Compensating Interest
: An amount to be deposited in the
Distribution Account by the Servicer pursuant to the Servicing
Agreement or the Master Servicer pursuant to this Agreement to
offset a Prepayment Interest Shortfall on a Mortgage Loan subject
to this Agreement; provided, however that the amount of
Compensating Interest required to be paid in respect of any
Mortgage Loan shall not exceed the Servicing Fee payable to the
Servicer or the Master Servicing Compensation payable to the Master
Servicer, as applicable.
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-WF1, 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 (NAAC 2005-WF1), and
for all other purposes is located at Wells Fargo Bank, N.A., P.O.
Box 98, Columbia, Maryland 21046, Attention: Corporate Trust (NAAC
2005-WF1) (or for overnight deliveries, at 9062 Old Annapolis Road,
Columbia, Maryland 21045, Attention: Corporate Trust (NAAC
2005-WF1)).
Corresponding
Certificate : With
respect to:
|
(i)
|
REMIC I Regular Interest LTI-IA, the
Class I-A Certificates;
|
|
(ii)
|
REMIC I Regular Interest LTI-IIA1A,
the Class II-A-1A Certificates;
|
|
(iii)
|
REMIC I Regular Interest LTI-IIA1B,
the Class II-A-1B Certificates;
|
|
(iv)
|
REMIC I Regular Interest LTI-IIA2,
the Class II-A-2 Certificates;
|
|
(v)
|
REMIC I Regular Interest LTI-IIA3,
the Class II-A-3 Certificates;
|
|
(vi)
|
REMIC I Regular Interest LTI-IIA4,
the Class II-A-4 Certificates;
|
|
(vii)
|
REMIC I Regular Interest LTI-IIA5,
the Class II-A-5 Certificates;
|
|
(viii)
|
REMIC I Regular Interest LTI-M1, the
Class M-1 Certificates;
|
|
(ix)
|
REMIC I Regular Interest LTI-M2, the
Class M-2 Certificates;
|
|
(x)
|
REMIC I Regular Interest LTI-M3, the
Class M-3 Certificates; and
|
|
(x)
|
REMIC I Regular Interest LTI-P, the
Class P Certificates.
|
Credit Enhancement
Percentage : With respect
to any Distribution Date and any Class of Publicly Offered
Certificates, the percentage obtained by dividing (x) the sum of
(i) the aggregate Certificate Principal Balance of the Class or
Classes of Publicly Offered Certificates subordinate thereto and
(ii) the Overcollateralization Amount by (y) the aggregate Stated
Principal Balance of the Mortgage Loans, calculated after taking
into account distributions of principal on the Mortgage Loans and
distribution of the Principal Distribution Amount to the holders of
the Certificates then entitled to distributions of principal on
such Distribution Date.
Credit Risk Management
Agreement : The agreement
between the Credit Risk Manager and the Servicer and/or Master
Servicer, dated as of May 26, 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 3.24(a)(x) and 3.27(b).
Credit Risk Management Fee
Rate : 0.015% per
annum.
Credit Risk Manager
: The Murrayhill Company, a Colorado
corporation.
Custodial Agreement
: The Custodial Agreement dated as
of May 1, 2005 among the Custodian, the Servicer and the
Trustee.
Custodian : JPMorgan Chase Bank, N.A., a national banking
association.
Cut-off Date
: May 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
: Means a reduction in the amount of
the monthly payment due on a Mortgage Loan as established by a
bankruptcy court in a bankruptcy of the related Mortgagor, except a
reduction constituting a Deficient Valuation or any reduction that
results in 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
: The Business Day immediately
preceding the related Remittance Date.
Distribution Account
: The separate Eligible Account
created and maintained by the Securities Administrator pursuant to
Section 3.23 in the name of the Securities Administrator for
the benefit of the Certificateholders and designated “Wells
Fargo Bank, National Association, in trust for registered holders
of Nomura Asset Acceptance Corp., Mortgage Pass-Through
Certificates, Series 2005-WF1. 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
June 2005.
Due Date : As to any Mortgage Loan, the date in each
month on which the related Scheduled Payment is due, as set forth
in the related Mortgage Note.
Due Period
: With respect to any Distribution
Date, the period from the second day of the calendar month
preceding the calendar month in which such Distribution Date occurs
through the close of business on the first day of the calendar
month in which such Distribution Date occurs.
Eligible Account
: Any of (i) an account or accounts
maintained with a federal or state chartered depository institution
or trust company, the long-term unsecured debt obligations and
short-term unsecured debt obligations of which are rated by each
Rating Agency in one of its two highest long-term and its highest
short-term rating categories respectively, at the time any amounts
are held on deposit therein, or (ii) an account or accounts in a
depository institution or trust company in which such accounts are
insured by the FDIC (to the limits established by the FDIC) and the
uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the
Trustee and to each Rating Agency, the Certificateholders have a
claim with respect to the funds in such account or a perfected
first priority security interest against any collateral (which
shall be limited to Permitted Investments) securing such funds that
is superior to claims of any other depositors or creditors of the
depository institution or trust company in which such account is
maintained, or (iii) a segregated, non-interest bearing trust
account or accounts maintained with the corporate trust department
of a federal or state chartered depository institution or trust
company having capital and surplus of not less than $50,000,000,
acting in its fiduciary capacity or (iv) any other account
acceptable to the Rating Agencies as evidenced in writing by the
Rating Agencies. Eligible Accounts may bear interest, and may
include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
ERISA : The Employee Retirement Income Security Act of
1974, as amended.
ERISA Restricted
Certificate : Each of the
Class X, Class P and Residual Certificates.
Excess Cap Payment
: With respect to any Distribution
Date, the excess, if any, of (1) the cap payments made by the Cap
Provider under the Cap Contracts with respect to the Class II-A-1A
Certificates and Class II-A-1B Certificates over (2) the amount of
the unpaid Net WAC Rate Carryover Amounts attributable to the Class
II-A-1A Certificates or the Class II-A-1B 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.
Fannie Mae
: Fannie Mae (formerly, Federal
National Mortgage Association), or any successor
thereto.
FDIC : The Federal Deposit Insurance Corporation, or
any successor thereto.
FIRREA : The Financial Institutions Reform, Recovery,
and Enforcement Act of 1989, as amended.
Freddie Mac
: Federal Home Loan Mortgage
Corporation, or any successor thereto.
Group I Mortgage Loans
: The Mortgage Loans identified as
such on the Mortgage Loan Schedule.
Group I Senior Principal
Distribution Amount :
Shall mean with respect to any Distribution Date, an amount equal
to the product of (x) the Senior Principal Distribution Amount and
(y) a fraction, the numerator of which is the Principal Remittance
Amount of the Group I Mortgage Loans and the denominator of which
is the Principal Remittance Amount of the Group I Mortgage Loans
and Group II Mortgage Loans.
Group II Certificates
: The Class II-A-1A, Class II-A-1B,
Class II-A-2, Class II-A-3, Class II-A-4 and Class II-A-5
Certificates.
Group II Mortgage
Loans : The Mortgage
Loans identified as such on the Mortgage Loan Schedule.
Group II Senior Principal
Distribution Amount :
Shall mean with respect to any Distribution Date, an amount equal
to the product of (x) the Senior Principal Distribution Amount and
(y) a fraction, the numerator of which is the Principal Remittance
Amount of the Group II Mortgage Loans and the denominator of which
is the Principal Remittance Amount of the Group I Mortgage Loans
and Group II Mortgage Loans.
Indemnified Persons
: The Trustee, the Master Servicer,
the Securities Administrator, the Custodian, 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
II-A-1A Certificates and Class II-A-1B 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 II-A-1A
Certificates and the Class II-A-1B 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 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 pursuant to the Servicing
Agreement and 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 minus (ii) all amounts relating to interest
required to be reimbursed pursuant to Sections 3.24 and 9.05 or as
otherwise set forth in this 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, the Distribution Date in March 2035.
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 and REMIC II shall be
the Latest Possible Maturity Date.
LIBOR Business Day
: Shall mean a day on which banks
are open for dealing in foreign currency and exchange in
London.
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 that it has received all amounts it
expects to receive in connection with such liquidation.
Liquidation Proceeds
: Amounts, other than Insurance
Proceeds, received in connection with the partial or complete
liquidation of a Mortgage Loan, whether through trustee’s
sale, foreclosure sale or otherwise, or in connection with any
condemnation or partial release of a Mortgaged Property and any
other proceeds received with respect to an REO Property, less the
sum of related unreimbursed Advances, Servicing Fees and Servicing
Advances and all expenses of liquidation, including property
protection expenses and foreclosure and sale costs, including court
and reasonable attorneys fees.
Loan Group
: Any of Loan Group I or Loan Group
II.
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 Publicly
Offered Certificates and any Distribution Date, a per annum rate
equal to two (2) times the weighted average of the Uncertificated
REMIC I Pass-Through Rates for REMIC I Regular Interest LTI-IA,
REMIC I Regular Interest LTI-IIA1A, REMIC I Regular Interest
LTI-IIA1B, REMIC I Regular Interest LTI-IIA2, REMIC I Regular
Interest LTI-IIA3, REMIC I Regular Interest LTI-IIA4, REMIC I
Regular Interest LTI-IIA5, REMIC I Regular Interest LTI-M1, REMIC I
Regular Interest LTI-M2, REMIC I Regular Interest LTI-M3 and REMIC
I Regular Interest LTI-ZZ, with the per annum rate on REMIC I
Regular Interest LTI-IA subject to a cap equal to the weighted
average of the Net Mortgage Rates of the Group I Mortgage Loans for
the purpose of this calculation; with the per annum rate on REMIC I
Regular Interest LTI-IIA1A subject to a cap equal to the Class
II-A-1A Pass-Through Rate for the purpose of this calculation; with
the per annum rate on REMIC I Regular Interest LTI-IIA1B subject to
a cap equal to the Class II-A-1B Pass-Through Rate for the purpose
of this calculation; with the per annum rate on REMIC I Regular
Interest LTI-IIA2 subject to a cap equal to the Class II-A-2
Pass-Through Rate for the purpose of this calculation; with the per
annum rate on REMIC I Regular Interest LTI-IIA3 subject to a cap
equal to the Class II-A-3 Pass-Through Rate for the purpose of this
calculation; with the per annum rate on REMIC I Regular Interest
LTI-IIA4 subject to a cap equal to the Class II-A-4 Pass-Through
Rate for the purpose of this calculation; with the per annum rate
on REMIC I Regular Interest LTI-IIA5 subject to a cap equal to the
Class II-A-5 Pass-Through Rate for the purpose of this calculation;
with the per annum rate on REMIC I Regular Interest LTI-M1 subject
to a cap equal to the Class M-1 Pass-Through Rate for the purpose
of this calculation; with the per annum rate on REMIC I Regular
Interest LTI-M2 subject to a cap equal to the Class M-2
Pass-Through Rate for the purpose of this calculation; with the per
annum rate on REMIC I Regular Interest LTI-M3 subject to a cap
equal to the Class M-3 Pass-Through Rate for the purpose of this
calculation and with the per annum rate on REMIC I Regular Interest
LTI-ZZ subject to a cap of zero for the purpose of this
calculation; provided, however, that for this purpose, the
calculation of the Uncertificated REMIC I Pass-Through Rate and the
related cap with respect to REMIC I Regular Interest LTI-IIA1A and
REMIC I Regular Interest LTI-IIA1B shall be multiplied by a
fraction, the numerator of which is the actual number of days in
the Accrual Period and the denominator of which is thirty
(30).
Master Servicer
: As of the Closing Date, Wells
Fargo Bank, N.A. and thereafter, its respective successors in
interest who meet the qualifications of this Agreement. The Master
Servicer and the Securities Administrator shall at all times be the
same Person.
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 Event of
Default : One or more of
the events described in Section 8.01(b).
Master Servicer
Compensation : As defined
in Section 3.14 of this Agreement.
MERS : Mortgage Electronic Registration Systems,
Inc., a corporation organized and existing under the laws of the
State of Delaware, or any successor thereto.
MERS® System
: The system of recording transfers
of Mortgages electronically maintained by MERS.
MIN : The Mortgage Identification Number for
Mortgage Loans registered with MERS on the MERS®
System.
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 May 26, 2005, between the
Seller, as seller and the Depositor, as purchaser.
Mortgage Loan Purchase
Pric e: 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 Servicer; 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 obligors 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 Liquidation
Proceeds : With respect
to a Mortgage Loan are Liquidation Proceeds net of unreimbursed
advances by the servicer and advances and expenses incurred by the
Servicer in connection with the liquidation of such Mortgage Loan
and the related Mortgaged Property.
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
Subordinate 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, (iii) the Master Servicer Fee Rate and (iv)
the rate at which the fee payable to any provider of lender-paid
mortgage insurance is calculated, if applicable.
Net WAC Pass-Through
Rate : With respect to
the Group II Certificates and each Distribution Date, the weighted
average of the Net Mortgage Rates of the Group II Mortgage Loans as
of the first day of the month preceding the month in which such
Distribution Date occurs. With respect to the Subordinate
Certificates and each Distribution Date, the weighted average of
the Net Mortgage Rates of all of the Mortgage Loans as of the first
day of the month preceding the month in which such Distribution
Date occurs, weighted in proportion to the results of subtracting
from the aggregate principal balance of the Group I Mortgage Loans,
the Certificate Principal Balance of the Class I-A Certificates and
subtracting from the aggregate principal balance of the Group II
Mortgage Loans, the aggregate Certificate Principal Balance of the
Group II Certificates. The Net WAC Pass-Through Rate for the Class
II-A-1A Certificates and Class II-A-1B Certificates shall be
adjusted for the actual number of days elapsed in the related
Accrual Period.
Net WAC Rate Carryover
Amount : With respect the
Group II Certificates and the Subordinate Certificates and any
Distribution Date on which the related Pass-Through Rate is limited
to the applicable Net WAC Pass-Through Rate, 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
limited to the Net WAC Pass-Through Rate 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 the Servicing Agreement, or the Trustee as
Successor Servicer, that, in the good faith judgment of the
Servicer or the Trustee 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 the Servicing 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 the Servicing 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 II-A-1A Certificates and Class
II-A-1B 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 3.0900% per
annum.
Opinion of Counsel
: A written opinion of counsel, who
may be counsel for the Seller, the Depositor or the Master
Servicer, reasonably acceptable to each addressee of such opinion;
provided that with respect to Section 2.05, 7.05 or 10.01, or
the interpretation or application of the REMIC Provisions, such
counsel must (i) in fact be independent of the Seller, the
Depositor, the Master Servicer and the Servicer, (ii) not have any
direct financial interest in the Seller, the Depositor or the
Master 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
as a result of the purchase of all of the Mortgage Loans and any
related REO Property pursuant to the last paragraph of
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
by the Securities Administrator and delivered by the Trustee
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 Balances of the Mortgage Loans as of the last day
of the related Due Period over (b) the aggregate Certificate
Principal Balance of the Publicly Offered Certificates on such
Distribution Date (after taking into account the payment of 100% of
the Principal Remittance Amount on such Distribution
Date).
Overcollateralization 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.
Payoff : Any voluntary payment of principal on a
Mortgage Loan by a Mortgagor equal to the entire outstanding Stated
Principal Balance of such Mortgage Loan, if received in advance of
the last scheduled Due Date for such Mortgage Loan and is not
accompanied by scheduled interest due on any date or dates in any
month or months subsequent to the month of such
payment-in-full.
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 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 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
the 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).
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 Master Servicer, the Servicer and the
Trustee on the Closing Date. The Prepayment Charge Schedule shall
set forth the following information with respect to each Prepayment
Charge:
|
(i)
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the Mortgage Loan identifying
number;
|
|
(ii)
|
a code indicating the type of
Prepayment Charge;
|
|
(iii)
|
the date on which the first Monthly
Payment was due on the related Mortgage Loan;
|
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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, 3.25 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 Servicing Fee, (b) the Credit
Risk Management Fee and (c) the fee payable to any provider of
lender-paid mortgage insurance, if any.
Prepayment Period
: With respect to any Distribution
Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
Principal 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 3.25, (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 the Servicing Agreement and
(g) all Subsequent Recoveries minus (ii) all amounts required to be
reimbursed pursuant to Sections 3.24 and 9.05 or as otherwise set
forth in this 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
each Distribution Date an amount equal to 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
May 24, 2005 relating to the offering of the Publicly Offered
Certificates.
Protected Account
: An account established and
maintained for the benefit of the Certificateholders by the
Servicer with respect to the Mortgage Loans and with respect to REO
Property pursuant to the Servicing Agreement.
Publicly Offered
Certificates : Any of the
Senior Certificates and the Subordinate 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, Servicing
Advances and Advances payable to the Servicer of the 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 the Servicing Agreement or 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 the
Servicer receives Subsequent Recoveries with respect to any
Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such Subsequent
Recoveries are applied to reduce the Certificate Principal Balance
of any Class of Certificates on any Distribution Date.
Record Date
: With respect to the Certificates
(other than the Class II-A-1A Certificates and Class II-A-1B
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 II-A-1A
Certificates and Class II-A-1B Certificates and any Distribution
Date, so long as the Class II-A-1A Certificates and Class II-A-1B
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 II-A-1A Certificates and Class II-A-1B 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
II-A-1A Certificates and Class II-A-1B 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 Protected Account (other than
any amounts representing any Servicer Prepayment Charge Payment
Amount), the Distribution Account, the Class P Certificate Account
and such assets that are deposited therein from time to time,
together with any and all income, proceeds and payments with
respect thereto; (iv) property that secured a Mortgage Loan and has
been acquired by foreclosure, deed in lieu of foreclosure or
otherwise; (v) the mortgagee’s rights under the Insurance
Policies with respect to the Mortgage Loans; (vi) the rights under
the Mortgage Loan Purchase Agreement, and (vii) all proceeds of the
foregoing, including proceeds of conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid
property. Notwithstanding the foregoing, however, REMIC I
specifically excludes (i) all payments and other collections of
principal and interest due on the Mortgage Loans on or before the
Cut-off Date, (ii) all Prepayment Charges payable in connection
with Principal Prepayments on the Mortgage Loans made before the
Cut-off Date, (iii) the Net WAC Reserve Fund and (iv) the Cap
Contracts.
REMIC I Interest Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to (a) the product of (i)
the aggregate Stated Principal Balance of the Mortgage Loans and
REO Properties then outstanding and (ii) the Uncertificated REMIC I
Pass-Through Rate for REMIC I Regular Interest LTI-AA minus the
Marker Rate, divided by (b) twelve (12).
REMIC I Marker Allocation
Percentage : 0.50% of any
amount payable or loss attributable from the Mortgage Loans, which
shall be allocated to REMIC I Regular Interest LTI-AA, REMIC I
Regular Interest LTI-IA, REMIC I Regular Interest LTI-IIA1A, REMIC
I Regular Interest LTI-
IIA1B, REMIC I Regular Interest
LTI-IIA2, REMIC I Regular Interest LTI-IIA3, REMIC I Regular
Interest LTI-IIA4, REMIC I Regular Interest LTI-IIA5, REMIC I
Regular Interest LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I
Regular Interest LTI-M3 and REMIC I Regular Interest
LTI-ZZ.
REMIC I Overcollateralization
Amount : With respect to
any date of determination, (i) 0.50% of the aggregate
Uncertificated Principal Balances of the REMIC I Regular Interests
minus (ii) the aggregate of the Uncertificated Principal Balances
of REMIC I Regular Interest LTI-IA, REMIC I Regular Interest
LTI-IIA1A, REMIC I Regular Interest LTI-IIA1B, REMIC I Regular
Interest LTI-IIA2, REMIC I Regular Interest LTI-IIA3, REMIC I
Regular Interest LTI-IIA4, REMIC I Regular Interest LTI-IIA5, REMIC
I Regular Interest LTI-M1, REMIC I Regular Interest LTI-M2 and
REMIC I Regular Interest LTI-M3, in each case as of such date of
determination.
REMIC I Principal Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to (a) the product of (i)
50% of the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties then outstanding and (ii) one (1) minus a
fraction, the numerator of which is two times the aggregate of the
Uncertificated Principal Balances of REMIC I Regular Interest
LTI-IA, REMIC I Regular Interest LTI-IIA1A, REMIC I Regular
Interest LTI-IIA1B, REMIC I Regular Interest LTI-IIA2, REMIC I
Regular Interest LTI-IIA3, REMIC I Regular Interest LTI-IIA4, REMIC
I Regular Interest LTI-IIA5, REMIC I Regular Interest LTI-M1, REMIC
I Regular Interest LTI-M2 and REMIC I Regular Interest LTI-M3 and
the denominator of which is the aggregate of the Uncertificated
Principal Balances of REMIC I Regular Interest LTI-IA, REMIC I
Regular Interest LTI-IIA1A, REMIC I Regular Interest LTI-IIA1B,
REMIC I Regular Interest LTI-IIA2, REMIC I Regular Interest
LTI-IIA3, REMIC I Regular Interest LTI-IIA4, REMIC I Regular
Interest LTI-IIA5, REMIC I Regular Interest LTI-M1, REMIC I Regular
Interest LTI-M2, REMIC I Regular Interest LTI-M3 and REMIC I
Regular Interest LTI-ZZ.
REMIC I Regular
Interests : REMIC I
Regular Interest LTI-AA, REMIC I Regular Interest LTI-IA, REMIC I
Regular Interest LTI-IIA1A, REMIC I Regular Interest LTI-IIA1B,
REMIC I Regular Interest LTI-IIA2, REMIC I Regular Interest
LTI-IIA3, REMIC I Regular Interest LTI-IIA4, REMIC I Regular
Interest LTI-IIA5, REMIC I Regular Interest LTI-M1, REMIC I Regular
Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I Regular
Interest LTI-ZZ, REMIC I Regular Interest LTI-P, REMIC I Regular
Interest LTI-1SUB, REMIC I Regular Interest LTI-1GRP, REMIC I
Regular Interest LTI-2SUB, REMIC I Regular Interest LTI-2GRP and
REMIC I Regular Interest LTI-XX.
REMIC I Regular Interest
LTI-AA: One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-AA shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IA : 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-IA 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-IIA1A: 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-IIA1A 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-IIA1B: 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-IIA1B shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IIA2: One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IIA2 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IIA3: 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-IIA3 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-IIA4 : 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-IIA4 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-IIA5 : 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-IIA5 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-M1 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-M1 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-M2 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-M2 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-M3 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-M3 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-1SUB : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-1SUB shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-1GRP : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-1GRP shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-2SUB : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-2SUB shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-2GRP : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-2GRP shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-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 and prepayment charges, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest
LTI-XX : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-XX shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-ZZ : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-ZZ shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest LTI-ZZ
Maximum Interest Deferral Amount : With respect to any Distribution Date, the
excess of (i) accrued interest at the Uncertificated REMIC I
Pass-Through Rate applicable to REMIC I Regular Interest LTI-ZZ for
such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LTI-ZZ minus the
REMIC I Overcollateralization Amount, in each case for such
Distribution Date, over (ii) the Uncertificated Accrued Interest on
REMIC I Regular Interest LTI-IA, REMIC I Regular Interest
LTI-IIA1A, REMIC I Regular Interest LTI-IIA1B, REMIC I Regular
Interest LTI-IIA2, REMIC I Regular Interest LTI-IIA3, REMIC I
Regular Interest LTI-IIA4, REMIC I Regular Interest LTI-IIA5, REMIC
I Regular Interest LTI-M1, REMIC I Regular Interest LTI-M2 and
REMIC I Regular Interest LTI-M3 for such Distribution Date, with
the rate on each such REMIC I Regular Interest subject to a cap
equal to the related Pass-Through Rate.
REMIC I Sub WAC Allocation
Percentage : 0.50% of any
amount payable or loss attributable from the Mortgage Loans, which
shall be allocated to REMIC I Regular Interest LTI-1SUB, REMIC I
Regular Interest LTI-1GRP, REMIC I Regular Interest LTI-2SUB, REMIC
I Regular Interest LTI-2GRP and REMIC I Regular Interest
LTI-XX.
REMIC I Subordinated Balance
Ratio : The ratio among
the Uncertificated Principal Balances of each REMIC I Regular
Interest ending with the designation “SUB,”, equal to
the ratio between, with respect to each such REMIC I Regular
Interest, the excess of (x) the aggregate Stated Principal Balance
of the Group I Mortgage Loans and Group II Mortgage Loans, as
applicable over (y) the current Certificate Principal Balance of
the related Senior Certificates.
REMIC I Targeted
Overcollateralization Amount : 0.50% of the Targeted Overcollateralization
Amount.
REMIC II : The segregated pool of assets consisting of
all of the REMIC I Regular Interests conveyed in trust to the
Trustee, for the benefit of the REMIC II Certificateholders
pursuant to Section 2.07, and all amounts deposited therein,
with respect to which a separate REMIC election is to be
made.
REMIC II Certificate
: Any Regular
Certificate.
REMIC Opinion
: Shall mean an Opinion of Counsel
to the effect that the proposed action will not have an adverse
affect on any REMIC created hereunder.
REMIC Provisions
: Provisions of the federal income
tax law relating to real estate mortgage investment conduits, which
appear at Sections 860A through 860G of Subchapter M of Chapter 1
of the Code, and related provisions, and proposed, temporary and
final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
REMIC Regular Interest
: Any REMIC I Regular Interest or a
Regular Certificate.
Remittance Date
: Shall mean the eighteenth (18th)
day of the month and if such day is not a Business Day, the
immediately succeeding Business Day.
REO Property
: A Mortgaged Property acquired by
the related Servicer through foreclosure or deed-in-lieu of
foreclosure in connection with a defaulted Mortgage
Loan.
Replacement Mortgage
Loan : A Mortgage Loan or
Mortgage Loans in the aggregate substituted by the Seller for a
Deleted Mortgage Loan, which must, on the date of such
substitution, as confirmed in a request for release in accordance
with the terms of the Custodial Agreement, (i) have a Stated
Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess
of, and not less than 90% of, the Stated Principal Balance of the
Deleted Mortgage Loan; (ii) have a fixed Mortgage Rate not less
than or more than 1% per annum higher than the Mortgage Rate of the
Deleted Mortgage Loan; (iii) have the same or higher credit quality
characteristics than that of the Deleted Mortgage Loan; (iv) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan; (v) have a remaining term to maturity no greater than (and
not more than one year less than) that of the Deleted Mortgage
Loan; (vi) not permit conversion of the Mortgage Rate from a fixed
rate to a variable rate; (vii) be secured by a first lien on the
related Mortgaged Property; (viii) constitute the same occupancy
type as the Deleted Mortgage Loan or be owner occupied; and (ix)
comply with each representation and warranty set forth in the
Mortgage Loan Purchase Agreement.
Required Insurance
Policy : With respect to
any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Required Overcollateralization
Amount : With respect to
any Distribution Date prior to the Stepdown Date, 0.70% 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) 1.40% 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, and
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, 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
specified by the Trustee 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 I-A, Class II-A-1A,
Class II-A-1B, Class II-A-2, Class II-A-3, Class II-A-4 and Class
II-A-5 Certificates.
Senior Interest Distribution
Amount :
With respect to any Distribution
Date and any Class of Senior Certificates will be an amount 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 (x) the Principal Distribution Amount for that
Distribution Date and (y) 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 (1) 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 (2) 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 11.90% and
the Required Overcollateralization Percentage.
Servicer : Shall mean Wells Fargo Bank, National
Association or any successor thereto appointed hereunder in
connection with the servicing and administration of the Mortgage
Loans.
Servicer Prepayment Charge
Payment Amount : The
amount payable by the Servicer in respect of any waived Prepayment
Charges pursuant to the Servicing Agreement.
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 Agreement
: The Seller’s Warranties and
Servicing Agreement, dated as of February 1, 2005 between the
Seller and the Servicer (as modified pursuant to the Assignment
Agreement).
Servicing Fee
: As to each Mortgage Loan and any
Distribution Date, an amount equal to 1/12th of the Servicing Fee
Rate multiplied by the Stated Principal Balance of such Mortgage
Loan as of the last day of the related Due Period or, in the event
of any payment of interest that accompanies a Principal Prepayment
in full during the related Due Period made by the Mortgagor
immediately prior to such prepayment, interest at the Servicing Fee
Rate on the same Stated Principal Balance of such Mortgage Loan
used to calculate the payment of interest on such Mortgage
Loan.
Servicing Fee Rate
: 0.25% per annum.
Servicing Officer
: Any officer of the Master Servicer
involved in, or responsible for, the administration and the
servicing of Mortgage Loans, whose name and specimen signature
appear on a list of Master Servicing Officers furnished by the
Master Servicer to the Trustee 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 the
Servicing 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 June 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%.
Subordinate
Certificates : Means,
collectively, the Class M-1, Class M-2 and Class M-3
Certificates.
Subsequent Recoveries
: With respect to each Mortgage
Loan, the amount recovered by the Servicer (net of reimbursable
expenses) with respect to a defaulted Mortgage Loan with respect to
which a Realized Loss was incurred, after the liquidation or
disposition of such Mortgage Loan
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).
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% 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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June 2008 to May 2009
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0.75%
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June 2009 to May 2010
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1.10%
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June 2010 to May 2011
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1.30%
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June 2011 and thereafter
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1.40%
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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, the Net WAC Reserve Fund and the Cap
Contracts.
Trustee : HSBC Bank USA, National Association, a
national banking association, not in its individual capacity, but
solely in its capacity as trustee for the benefit of the
Certificateholders under this Agreement, and any successor thereto,
and any corporation or national banking association resulting from
or surviving any consolidation or merger to which it or its
successors may be a party and any successor trustee as may from
time to time be serving as successor trustee hereunder.
Uncertificated Accrued
Interest : With respect
to each Uncertificated REMIC Regular Interest on each Distribution
Date, an amount equal to one month’s interest at the related
Uncertificated Pass-Through Rate on the Uncertificated Principal
Balance or Uncertificated Notional Amount, as applicable, of such
REMIC Regular Interest. In each case, Uncertificated Accrued
Interest will be reduced by any Prepayment Interest Shortfalls and
shortfalls resulting from application of the Relief Act (allocated
to such REMIC Regular Interests as set forth in Section
1.02).
Uncertificated Principal
Balance : With respect to
each REMIC Regular Interest, the principal amount of such REMIC
Regular Interest outstanding as of any date of determination. As of
the Closing Date, the Uncertificated Principal Balance of each
REMIC Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated
Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC Regular Interest shall be reduced
by all distributions of principal made on such REMIC Regular
Interest on such Distribution Date pursuant to Section 5.08 and, if
and to the extent necessary and appropriate, shall be further
reduced on such Distribution Date by Realized Losses as provided in
Section 5.08. The Uncertificated Principal Balance of each REMIC
Regular Interest shall never be less than zero.
Uncertificated REMIC I
Pass-Through Rate : With
respect to REMIC I Regular Interest LTI-AA, REMIC I Regular
Interest LTI-IA, REMIC I Regular Interest LTI-IIA1A, REMIC I
Regular Interest LTI-IIA1B, REMIC I Regular Interest LTI-IIA2,
REMIC I Regular Interest LTI-IIA3, REMIC I Regular Interest
LTI-IIA4, REMIC I Regular Interest LTI-IIA5, REMIC I Regular
Interest LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I Regular
Interest LTI-M3, REMIC I Regular Interest LTI-ZZ, REMIC I Regular
Interest LTI-1SUB, REMIC I Regular Interest LTI-2SUB and REMIC I
Regular Interest LTI-XX, the weighted average of the Net Mortgage
Rates of the Mortgage Loans. With respect to REMIC I Regular
Interest LTI-1GRP, the weighted average of the Net Mortgage Rates
of the Group I Mortgage Loans. With respect to REMIC I Regular
Interest LTI-2GRP, the weighted average of the Net Mortgage Rates
of the Group II Mortgage Loans. REMIC I Regular Interest LTI-P will
not accrue interest.
Voting Rights
: The portion of the voting rights
of all the Certificates that is allocated to any Certificate for
purposes of the voting provisions hereunder. Voting Rights shall be
allocated (i) 98% to the Certificates (other than the Class X,
Class P and the Residual Certificates) and (ii) 1% to each of the
Class X Certificates and Class P Certificates. Voting rights will
be allocated among the Certificates of each such Class in
accordance with their respective Percentage Interests. The Residual
Certificates will not be allocated any voting rights.
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Section 1.02
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Allocation of Certain Interest
Shortfalls .
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For purposes of calculating the
amount of the Interest Remittance Amount for any Distribution Date,
(1) the aggregate amount of any Net Interest Shortfalls in respect
of the Mortgage
Loans for any Distribution Date
shall reduce the Interest Remittance Amount on a pro rata
basis based on, and to the extent of, one month’s interest at
the then applicable respective Pass-Through Rate on the respective
Certificate Principal Balance of each class of Publicly Offered
Certificates and (2) the aggregate amount of any Realized Losses
allocated to the Subordinate Certificates for any Distribution Date
shall be allocated to the Class X Certificates based on, and to the
extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the Certificate Principal Balance
thereof on any Distribution Date.
For purposes of calculating the
amount of Uncertificated Accrued Interest for the REMIC I Regular
Interests for any Distribution Date:
The REMIC I Marker Allocation
Percentage of the aggregate amount of any Net Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated among REMIC I Regular Interest LTI-AA, REMIC I
Regular Interest LTI-IA, REMIC I Regular Interest LTI-IIA1A, REMIC
I Regular Interest LTI-IIA1B, REMIC I Regular Interest LTI-IIA2,
REMIC I Regular Interest LTI-IIA3, REMIC I Regular Interest
LTI-IIA4, REMIC I Regular Interest LTI-IIA5, REMIC I Regular
Interest LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I Regular
Interest LTI-M3 and REMIC I Regular Interest LTI-ZZ, pro
rata based on, and to the extent of, one month’s interest
at the then applicable respective Uncertificated REMIC I
Pass-Through Rate on the respective Uncertificated Principal
Balance of each such REMIC I Regular Interest; and
The REMIC I Sub WAC Allocation
Percentage of the aggregate amount of any Net Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated to Uncertificated Accrued Interest payable to
REMIC I Regular Interest LTI-1SUB, REMIC I Regular Interest
LTI-1GRP, REMIC I Regular Interest LTI-2SUB, REMIC I Regular
Interest LTI-2GRP and REMIC I Regular Interest LTI-XX, pro
rata based on, and to the extent of, one month’s interest
at the then applicable respective Uncertificated REMIC I
Pass-Through Rate on the respective Uncertificated Principal
Balance of each such REMIC I Regular Interest.
ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND
WARRANTIES
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Section 2.01
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Conveyance of Trust
Fund .
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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. 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
the 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 Custodian
pursuant to the Custodial Agreement the documents with respect to
each Mortgage Loan as described under Section 2 of the
Custodial Agreement (the “Mortgage Loan Documents”). In
connection with such delivery and as further described in the
Custodial Agreement, the 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 Custodial Agreement) with respect to such review with
exceptions noted thereon. In addition, under the 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
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 Custodian
pursuant to the terms and conditions of the 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
Custodian, such documents including the mortgagee policy of title
insurance and any Mortgage Loan Documents upon return from the
recording office. The Master Servicer shall not be responsible for
any custodian fees or other costs incurred in obtaining such
documents and the Depositor shall cause the Master Servicer to be
reimbursed for any
such costs the Master Servicer may
incur in connection with performing its obligations under this
Agreement.
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Section 2.02
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Acceptance of the Mortgage
Loans .
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(a) Based
on the initial trust receipt received by it from the Custodian
pursuant to the Custodial Agreement, the Trustee acknowledges
receipt, subject to the provisions of Section 2.01 hereof and
Section 2 of the Custodial Agreement, of the Mortgage Loan
Documents and all other assets included in the definition of
“REMIC I” under clauses (i), (ii) (iii), (v) and (vi)
(to the extent of amounts deposited into the Distribution Account)
and declares that it holds (or the Custodian on its behalf holds)
and will hold such documents and the other documents delivered to
it constituting a Mortgage Loan Document, and that it holds (or the
Custodian on its behalf holds) or will hold all such assets and
such other assets included in the definition of “REMIC
I” in trust for the exclusive use and benefit of all present
and future Certificateholders.
(b) In
conducting the review of the Mortgage Files in accordance with the
Custodial Agreement, the Custodian on the Trustee’s behalf
will ascertain whether all required documents have been executed
and received and whether those documents relate to the Mortgage
Loans identified in Exhibit B to this Agreement, as supplemented.
If the Custodian finds any document constituting part of the
Mortgage File not to have been executed or received, or to be
unrelated to the Mortgage Loans identified in Exhibit B, the Seller
shall correct or cure any such defect or, if prior to the end of
the second anniversary of the Closing Date, the Seller may
substitute for the related Mortgage Loan a Replacement Mortgage
Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03 or shall
deliver to the Trustee an Opinion of Counsel to the effect that
such defect does not materially or adversely affect the interests
of the Certificateholders in such Mortgage Loan within sixty (60)
days from the date of notice from the Custodian of the defect and
if the Seller fails to correct or cure the defect or deliver such
opinion within such period, the Seller will, subject to
Section 2.03, within ninety (90) days from the notification of
the Custodian purchase such Mortgage Loan at the Purchase Price;
provided, however, that if such defect relates solely to the
inability of the Seller to deliver the Mortgage, assignment thereof
to the Custodian, or intervening assignments thereof with evidence
of recording thereon because such documents have been submitted for
recording and have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such
Mortgage Loan if the Seller delivers such documents promptly upon
receipt, but in no event later than 360 days after the Closing
Date.
(c) No
later than 180 days after the Closing Date, the Custodian on the
Trustee’s behalf will review, for the benefit of the
Certificateholders, the Mortgage Files and will execute and deliver
or cause to be executed and delivered to the Seller and the
Trustee, a final trust receipt substantially in the form annexed to
the Custodial Agreement. In conducting such review, the Custodian
on the Trustee’s behalf and in accordance with the terms of
the 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 Custodian on the
Trustee’s behalf has received either an original or a copy
thereof, as required in the Custodial Agreement. If the Custodian
finds that any document with respect to a Mortgage Loan has not
been received, or is unrelated to the Mortgage Loans identified in
Exhibit B or appears to be defective on its face, the Custodian
shall note such defect in the exception report attached to the
final trust receipt issued pursuant to the Custodial Agreement and
the Seller shall correct or cure any such defect or, if prior to
the end of the second anniversary of the Closing Date, the Seller
may substitute for the related Mortgage Loan a Replacement Mortgage
Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in
Section 2.03 or shall deliver
to the Trustee an Opinion of Counsel to the effect that such defect
does not materially or adversely affect the interests of
Certificateholders in such Mortgage Loan within sixty (60) days
from the date of notice from the Trustee of the defect and if the
Seller is unable within such period to correct or cure such defect,
or to substitute the related Mortgage Loan with a Replacement
Mortgage Loan or to deliver such opinion, the Seller shall, subject
to Section 2.03, within ninety (90) days from the notification
of the Trustee, purchase such Mortgage Loan at the Purchase Price;
provided, however, that if such defect relates solely to the
inability of the Seller to deliver the Mortgage, assignment thereof
to the Trustee or intervening assignments thereof with evidence of
recording thereon, because such documents have not been returned by
the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan, if the Seller delivers such documents
promptly upon receipt, but in no event later than 360 days after
the Closing Date.
(d) In
the event that a Mortgage Loan is purchased by the Seller in
accordance with subsections 2.02(a) or (b) above or Section 2.03,
the Seller shall remit the applicable Purchase Price to the
Servicer for deposit in the Protected Account and shall provide
written notice to the Securities Administrator detailing the
components of the Purchase Price, signed by an authorized officer,
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 Protected Account. In addition, following such
deposit of the Purchase Price, and upon receipt by the Trustee from
the Master Servicer or the Securities Administrator of a copy of
the Servicer’s monthly remittance report certifying that the
Purchase Price has been deposited in the Protected Account, receipt
of an Opinion of Counsel if required by Section 2.05, and the
receipt of a Request for Release with respect to such Mortgage
Loan, 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 Protected
Account was made. The Trustee shall promptly notify the Rating
Agencies of such repurchase. The obligation of the Seller to cure,
repurchase or substitute for any Mortgage Loan as to which a defect
in a constituent document exists shall be the sole remedies
respecting such defect available to the Certificateholders or to
the Trustee on their behalf. The Seller shall promptly reimburse
the Trustee for any expenses incurred by the Trustee in respect of
enforcing the remedies for such breach.
(e) The
Seller shall deliver to the Custodian the Mortgage Note and other
documents constituting the Mortgage File with respect to any
Replacement Mortgage Loan, which the Custodian will review as
provided in the Custodial Agreement, provided, that the Closing
Date referred to therein shall instead be the date of delivery of
the Mortgage File with respect to each Replacement Mortgage
Loan.
|
Section 2.03
|
Representations, Warranties and
Covenants of the Seller and the Master Servicer
.
|
(a) The
Seller hereby represents and warrants to and covenants with, the
Depositor, the Master Servicer 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 the then current 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.
(b) The
Master Servicer hereby represents, warrants and covenants with the
Depositor and the Trustee as follows, as of the Closing
Date:
(i) The
Master Servicer is a national banking association duly formed,
validly existing and in good standing under the laws of the United
States of America and is duly authorized and qualified to transact
any and all business contemplated by this Agreement to be conducted
by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its
business as presently conducted by it and to execute, deliver and
perform, and to enter into and consummate, all transactions
contemplated by this Agreement. The Master Servicer has duly
authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this
Agreement, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a legal, valid and binding
obligation of the Master Servicer, enforceable against it in
accordance with its terms except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization or similar
laws affecting the enforcement of creditors’ rights generally
and by general principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer,
the consummation by the Master Servicer of any other of the
transactions herein contemplated, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of
business of the Master Servicer and will not (A) result in a breach
of any term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or
acceleration of, or result in a default under, the terms of any
other material agreement or
instrument to which the Master
Servicer is a party or by which it may be bound, or any statute,
order or regulation applicable to the Master Servicer of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is
not a party to, bound by, or in breach or violation of any
indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to
the Master Servicer’s knowledge, would in the future
materially and adversely affect, (x) the ability of the Master
Servicer to perform its obligations under this Agreement or (y) the
business, operations, financial condition, properties or assets of
the Master Servicer taken as a whole;
(iv) The
Master Servicer does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant
made by it and contained in this Agreement;
(v) No
litigation is pending against the Master Servicer that would
materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Master
Servicer to perform any of its other obligations hereunder in
accordance with the terms hereof,
(vi) There
are no actions or proceedings against, or investigations known to
it of, the Master Servicer before any court, administrative or
other tribunal (A) that might prohibit its entering into this
Agreement, (B) seeking to prevent the consummation of the
transactions contemplated by this Agreement or (C) that might
prohibit or materially and adversely affect the performance by the
Master Servicer of its obligations under, or validity or
enforceability of, this Agreement; and
(vii) No
consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Master Servicer of, or compliance by the
Master Servicer with, this Agreement or the consummation by it of
the transactions contemplated by this Agreement, except for such
consents, approvals, authorizations or orders, if any, that have
been obtained prior to the Closing Date.
(c) Upon
discovery by any of the parties hereto of a breach of a
representation or warranty set forth in Section 2.03(a)(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(a)(viii), (ix) and (x) and Section 8 of the
Mortgage Loan Purchase Agreement, that within ninety (90) days of
the discovery of a breach of any representation or warranty set
forth therein that materially and adversely affects the interests
of the Certificateholders in any Mortgage Loan, it shall cure such
breach in all material respects and, if such breach is not so
cured, (i) prior to the second anniversary of the Closing Date,
remove such Mortgage Loan (a “Deleted Mortgage Loan”)
from the Trust Fund and substitute in its place a Replacement
Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage
Loan or Mortgage Loans from the Trustee at the Purchase Price in
the manner set forth below; provided that any such substitution
pursuant to (i) above or repurchase pursuant to (ii) above shall
not be effected prior to the delivery to the Trustee of an Opinion
of Counsel if required by Section 2.05 and any such
substitution pursuant to (i) above shall not be effected prior to
the additional delivery to the
Custodian of a request for release
in accordance with the 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 Custodian
for the benefit of the Certificateholders such documents and
agreements as are required by Section 2 of the 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. 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
Distribution Account of the amount required to be deposited therein
in connection with such substitution as described in the following
paragraph and receipt by the Custodian of a request for release for
such Mortgage Loan in accordance with the Custodial Agreement, the
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 Master Servicer 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 Protected 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
Protected 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 Protected Account. In addition,
upon such deposit of the Purchase Price, the delivery of an
Officer’s Certificate by the Servicer to the Trustee (with a
copy to the Securities Administrator) certifying that the Purchase
Price has been deposited in the Protected Account, the delivery of
an Opinion of Counsel if required by Section 2.05 and the receipt
of a Request for Release, the Trustee shall release the related
Mortgage File held for the benefit of the related
Certificateholders to the Seller, and the Trustee shall execute and
deliver at such Person’s direction the related instruments of
transfer or assignment prepared by the Seller, in each case without
recourse, as shall be necessary to transfer title from the Trustee
for the benefit of the Certificateholders and transfer the
Trustee’s interest to the Seller to any Mortgage Loan
purchased pursuant to this Section 2.03. It is understood and
agreed that the obligation under this Agreement of the Seller to
cure, repurchase or replace any Mortgage Loan as to which a breach
has occurred and is continuing shall constitute the sole remedies
against the Seller respecting such breach available to
Certificateholders, the Depositor or the Trustee.
(d) The
representations and warranties set forth in Section 2.03 shall
survive delivery of the respective Mortgage Loans and Mortgage
Files to the Trustee or the Custodian for the benefit of the
Certificateholders.
|
Section 2.04
|
Representations and Warranties of
the Depositor .
|
The Depositor hereby represents and
warrants to, and covenants, with the Master Servicer, the Seller
and the Trustee as follows, as of the date hereof and as of the
Closing Date:
(i) The
Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware and has full power and authority (corporate and other)
necessary to own or hold its properties and to conduct its business
as now conducted by it and to enter into and perform its
obligations under this Agreement.
(ii) The
Depositor has the full corporate power and authority to execute,
deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement and has duly
authorized, by all necessary corporate action on its part, the
execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes a legal, valid and
binding obligation of the Depositor, enforceable against the
Depositor in accordance with its terms, subject, as to
enforceability, to (i) bankruptcy, insolvency, moratorium
receivership and other similar laws relating to creditors’
rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding
therefor may be brought and further
subject to public policy with respect to indemnity and contribution
under applicable securities law.
(iii) The
execution and delivery of this Agreement by the Depositor, the
consummation of the transactions contemplated by this Agreement,
and the fulfillment of or compliance with the terms hereof are in
the ordinary course of business of the Depositor and will not (A)
result in a material breach of any term or provision of the charter
or by-laws of the Depositor or (B) materially conflict with, result
in a material breach, violation or acceleration of, or result in a
material default under, the terms of any other material agreement
or instrument to which the Depositor is a party or by which it may
be bound or (C) constitute a material violation of any statute,
order or regulation applicable to the Depositor of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Depositor; and the Depositor is not in breach
or violation of any material indenture or other material agreement
or instrument, or in violation of any statute, order or regulation
of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or
violation may materially impair the Depositor’s ability to
perform or meet any of its obligations under this
Agreement.
(iv) No
litigation is pending, or, to the best of the Depositor’s
knowledge, threatened, against the Depositor that would materially
and adversely affect the execution, delivery or enforceability of
this Agreement or the ability of the Depositor to perform its
obligations under this Agreement in accordance with the terms
hereof.
(v) No
consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Depositor of, or compliance by the Depositor
with, this Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval,
authorization or order is required, the Depositor has obtained the
same.
The Depositor hereby represents and
warrants to the Trustee as of the Closing Date, following the
transfer of the Mortgage Loans to it by the Seller, the Depositor
had good title to the Mortgage Loans and the related Mortgage Notes
were subject to no offsets, claims, defenses or
counterclaims.
It is understood and agreed that the
representations and warranties set forth in this Section 2.04
shall survive delivery of the Mortgage Files to the Trustee or the
Custodian for the benefit of the Certificateholders. Upon discovery
by the Depositor, the Master Servicer, the Servicer or the Trustee
of a breach of such representations and warranties, the party
discovering such breach shall give prompt written notice to the
others and to each Rating Agency.
Section 2.05
Delivery of Opinion of Counsel in Connection with Substitutions
and Repurchases .
(a) Notwithstanding
any contrary provision of this Agreement, with respect to any
Mortgage Loan that is not in default or as to which default is not
imminent, no repurchase or substitution pursuant to Sections 2.02
or 2.03 shall be made unless the Seller delivers to the Trustee an
Opinion of Counsel, addressed to the Trustee, to the effect that
such repurchase or substitution would not (i) result in the
imposition of the tax on “prohibited transactions” of
REMIC I or REMIC II or contributions after the Closing Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code,
respectively or (ii) cause any of
REMIC I or REMIC II to fail to qualify as a REMIC at any time that
any Certificates are outstanding. Any Mortgage Loan as to which
repurchase or substitution was delayed pursuant to this paragraph
shall be repurchased or the substitution therefor shall occur
(subject to compliance with Sections 2.02 or 2.03) upon the earlier
of (a) the occurrence of a default or imminent default with respect
to such Mortgage Loan and (b) receipt by the Trustee of an Opinion
of Counsel to the effect that such repurchase or substitution, as
applicable, will not result in the events described in clause (i)
or clause (ii) of the preceding sentence.
(b) Upon
discovery by the Depositor or the Seller that any Mortgage Loan
does not constitute a “qualified mortgage” within the
meaning of section 860G(a)(3) of the Code, the party discovering
such fact shall promptly (and in any event within five (5) Business
Days of discovery) give written notice thereof to the other parties
and the Trustee. In connection therewith, the Seller, at its
option, shall either (i) substitute, if the conditions in
Section 2.03(c) with respect to substitutions are satisfied, a
Replacement Mortgage Loan for the affected Mortgage Loan, or (ii)
repurchase the affected Mortgage Loan within ninety (90) days of
such discovery in the same manner as it would a Mortgage Loan for a
breach of representation or warranty contained in
Section 2.03. The Trustee shall reconvey to the Seller the
Mortgage Loan to be released pursuant hereto in the same manner,
and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in
Section 2.03.
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Section 2.06
|
Issuance of the REMIC I Regular
Interests and Class R Certificates .
|
The Trustee acknowledges the
assignment to it of the Mortgage Loans and the delivery to the
Custodian on its behalf of the related Mortgage Files, subject to
the provisions of Section 2.01 and Section 2.02, together
with the assignment to it of all other assets included in REMIC I,
the receipt of which is hereby acknowledged. The interests
evidenced by the Class R-I Interest, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership
interest in REMIC I. The rights of the Holders of the Class R-I
Interest and REMIC I (as holder of the REMIC I Regular Interests)
to receive distributions from the proceeds of REMIC I in respect of
the Class R-I Interest and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted
by the Class R-I Interest and the REMIC I Regular Interests, shall
be as set forth in this Agreement.
|
Section 2.07
|
Conveyance of the REMIC I Regular
Interests .
|
The Depositor, concurrently with the
execution and delivery hereof, does hereby transfer, assign, set
over and otherwise convey to the Trustee, without recourse all the
right, title and interest of the Depositor in and to the REMIC I
Regular Interests for the benefit of the Class R-II Interest and
REMIC II (as holder of the REMIC I Regular Interests). The Trustee
acknowledges receipt of the REMIC I Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use
and benefit of all present and future Holders of the Class R-II
Interest and REMIC II (as holder of the REMIC I Regular Interests).
The rights of the Holder of the Class R-II Interest and REMIC II
(as holder of the REMIC I Regular Interests) to receive
distributions from the proceeds of REMIC II in respect of the Class
R-II Interest and Regular Certificates, respectively, and all
ownership interests evidenced or constituted by the Class R-II
Interest and the Regular Certificates, shall be as set forth in
this Agreement. The Class R-II Interest and the Regular
Certificates shall constitute the entire beneficial ownership
interest in REMIC II.
|
Section 2.08
|
Issuance of Residual
Certificates .
|
The Trustee acknowledges the
assignment to it of the REMIC I Regular Interests and, concurrently
therewith and in exchange therefor, pursuant to the written request
of the Depositor executed by an officer of the Depositor, the
Securities Administrator has executed and authenticated, and the
Trustee has delivered to or upon the order of the Depositor, the
Class R Certificates in authorized denominations.
|
Section 2.09
|
Establishment of Trust
.
|
The Depositor does hereby establish,
pursuant to the further provisions of this Agreement and the laws
of the State of New York, an express trust to be known, for
convenience, as “Nomura Asset Acceptance Corporation,
Alternative Loan Trust, Series 2005-WF1” and does hereby
appoint HSBC Bank USA, National Association, as Trustee in
accordance with the provisions of this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE
MORTGAGE LOANS; ACCOUNTS
|
Section 3.01
|
The Master Servicer
.
|
The Master Servicer shall supervise,
monitor and oversee the obligation of the Servicer to service and
administer the Mortgage Loans in accordance with the terms of the
Servicing Agreement and shall have full power and authority to do
any and all things which it may deem necessary or desirable in
connection with such master servicing and administration. In
performing its obligations hereunder, the Master Servicer shall act
in a manner consistent with Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall oversee and consult with the
Servicer as necessary from time-to-time to carry out the Master
Servicer’s obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the
Master Servicer by the Servicer and shall cause the Servicer to
perform and observe the covenants, obligations and conditions to be
performed or observed by the Servicer under the Servicing
Agreement. The Master Servicer shall independently and separately
monitor the Servicer’s servicing activities with respect to
each Mortgage Loan, reconcile the results of such monitoring with
such information provided in the previous sentence on a monthly
basis and coordinate corrective adjustments to the Servicer’s
and Master Servicer’s records, and based on such reconciled
and corrected information, prepare the statements specified in
Section 5.07 and any other information and statements required to
be provided by the Master Servicer hereunder. The Master Servicer
shall reconcile the results of its Mortgage Loan monitoring with
the actual remittances of the Servicer to the Distribution Account
pursuant to the Servicing Agreement.
Notwithstanding anything in this
Agreement or the Servicing Agreement to the contrary, the Master
Servicer shall not have any duty or obligation to enforce any
Credit Risk Management Agreement that the Servicer is a party to
(the “Servicer Credit Risk Management Agreement”) or to
supervise, monitor or oversee the activities of the Credit Risk
Manager under the Servicer Credit Risk Management Agreement with
respect to any action taken or not taken by the Servicer pursuant
to a recommendation of the Credit Risk Manager.
The Trustee shall furnish the
Servicer and the Master Servicer with any limited powers of
attorney and other documents in form as provided to it necessary or
appropriate to enable the Servicer and the Master Servicer to
service or master service and administer the Mortgage Loans and REO
Property. The Trustee shall have no responsibility for any action
of the Master Servicer or the Servicer pursuant to any such limited
power of attorney and shall be indemnified by the Master Servicer
or the Servicer for any cost, liability or expense arising from the
misuse thereof by the Master Servicer or the Servicer.
The Trustee, the Custodian and the
Securities Administrator shall provide access to the records and
documentation in possession of the Trustee, the Custodian or the
Securities Administrator regarding the Mortgage Loans and REO
Property and the servicing thereof to the Certificateholders, the
FDIC, and the supervisory agents and examiners of the FDIC, such
access being afforded only upon reasonable prior written request
and during normal business hours at the office of the Trustee, the
Custodian or the Securities Administrator; provided, however, that,
unless otherwise required by law, none of the Trustee, the
Custodian or the Securities Administrator shall be required to
provide access to such records and documentation if the provision
thereof would violate
the legal right to privacy of any
Mortgagor. The Trustee, the Custodian and the Securities
Administrator shall allow representatives of the above entities to
photocopy any of the records and documentation and shall provide
equipment for that purpose at a charge that covers the
Trustee’s, the Custodian’s or the Securities
Administrator’s actual costs.
The Trustee shall execute and
deliver to the Servicer or the Master Servicer upon request any
court pleadings, requests for trustee’s sale or other
documents necessary or desirable and, in each case, provided to the
Trustee by the Servicer or the Master Servicer to (i) the
foreclosure or trustee’s sale with respect to a Mortgaged
Property; (ii) any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or any other Loan Document;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv)
enforce any other rights or remedies provided by the Mortgage Note
or any other Mortgage Loan Document or otherwise available at law
or equity.
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Section 3.02
|
REMIC-Related
Covenants .
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For as long as each REMIC shall
exist, the Trustee and the Securities Administrator shall treat
each REMIC as a REMIC, and the Trustee and the Securities
Administrator shall comply with any directions of the Seller, the
Servicer or the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or permit
the sale of all or any portion of the Mortgage Loans or of any
investment of deposits in an Account unless such sale is as a
result of a repurchase of the Mortgage Loans pursuant to this
Agreement or the Trustee has received an Opinion of Counsel stating
that such sale will not cause either REMIC I or REMIC II to fail to
qualify as a REMIC or result in the imposition of a tax
upon the Trust Fund (including but not limited to the tax on
prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax on contributions to a REMIC set forth in Section
860G(d) of the Code) prepared at the expense of the Trust Fund; and
(b) other than with respect to a substitution pursuant to the
Mortgage Loan Purchase Agreement, the Assignment Agreement or
Section 2.03 of this Agreement, as applicable, accept any
contribution to any REMIC after the Startup Day without receipt of
an Opinion of Counsel stating that such contribution will not
either REMIC I or REMIC II to fail to qualify as a REMIC or result
in the imposition of a tax upon the Trust Fund (including but not
limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code).
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Section 3.03
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Monitoring of Servicer
.
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(a) The
Master Servicer shall be responsible for monitoring the compliance
by the Servicer with its duties under the Servicing Agreement. In
the review of the Servicer’s activities, the Master Servicer
may rely upon an officer’s certificate of the Servicer with
regard to the Servicer’s compliance with the terms of the
Servicing Agreement. In the event that the Master Servicer, in its
judgment, determines that the Servicer should be terminated in
accordance with the Servicing Agreement, or that a notice should be
sent pursuant to the Servicing Agreement with respect to the
occurrence of an event that, unless cured, would constitute grounds
for such termination, the Master Servicer shall notify the Seller
and the Trustee thereof and the Trustee shall issue such notice or
take such other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of the Servicer
under the Servicing Agreement, and shall, in the event that the
Servicer fails to perform its obligations in accordance with the
Servicing Agreement, subject to the preceding paragraph, notify the
Trustee and the Trustee shall terminate the rights and obligations
of
the Servicer thereunder and act as
servicer of the Mortgage Loans or enter in to a new servicing
agreement with a successor servicer selected by the Trustee;
provided, however, it is understood and acknowledged by the parties
hereto that there will be a period of transition (not to exceed 90
days) before the actual servicing functions can be fully
transferred to such successor servicer. Such enforcement,
including, without limitation, the legal prosecution of claims and
the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were
it the owner of the Mortgage Loans. The Master Servicer shall pay
the costs of such enforcement at its own expense, provided that the
Master Servicer shall not be required to prosecute or defend any
legal action except to the extent that the Master Servicer shall
have received indemnity reasonably acceptable to it for its costs
and expenses in pursuing such action.
(c) To
the extent that the costs and expenses related to the termination
of the Servicer, appointment of a successor servicer or the
transfer and assumption of servicing by the Trustee with respect to
the Servicing Agreement (including, without limitation, (i) all
legal costs and expenses and all due diligence costs and expenses
associated with an evaluation of the potential termination of the
Servicer as a result of an event of default by the Servicer and
(ii) all costs and expenses associated with the complete transfer
of servicing, including all servicing files and all servicing data
and the completion, correction or manipulation of such servicing
data as may be required by the successor servicer to correct any
errors or insufficiencies in the servicing data or otherwise to
enable the successor servicer to service the Mortgage Loans in
accordance with the Servicing Agreement) are not fully and timely
reimbursed by the terminated Servicer, the Trustee shall be
entitled to reimbursement of such costs and expenses from the
Distribution Account.
(d) The
Master Servicer shall require the Servicer to comply with the
remittance requirements and other obligations set forth in the
Servicing Agreement.
(e) If
the Trustee acts as Servicer, it shall not assume liability for the
representations and warranties of the Servicer, if any, that it
replaces.
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Section 3.04
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Fidelity Bond
.
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The Master Servicer, at its expense,
shall maintain in effect a blanket fidelity bond and an errors and
omissions insurance policy that shall be in such form and amount
generally acceptable for entities serving as master servicers or
trustees, affording coverage with respect to all directors,
officers, employees and other Persons acting on such Master
Servicer’s behalf, and covering errors and omissions in the
performance of the Master Servicer’s obligations hereunder.
Any such errors and omissions policy and fidelity bond may not be
cancelable without thirty (30) days’ prior written notice to
the Trustee.
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Section 3.05
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Power to Act;
Procedures .
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The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority,
subject to the REMIC Provisions and the provisions of Section 9.13
hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and
administration of the Mortgage Loans, including but not limited to
the power and authority (i) to execute and deliver, on behalf of
the Certificateholders and the Trustee, customary consents or
waivers and other instruments and documents, (ii) to consent to
transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any
Insurance
Proceeds and Liquidation Proceeds,
and (iv) to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Loan, in each
case, in accordance with the provisions of this Agreement and the
Servicing Agreement, as applicable; provided, however, that the
Master Servicer shall not (and, consistent with its
responsibilities under Section 3.03, shall not permit the Servicer
to) knowingly or intentionally take any action, or fail to take (or
fail to cause to be taken) any action reasonably within its control
and the scope of duties more specifically set forth herein, that,
under the REMIC Provisions, if taken or not taken, as the case may
be, would cause any REMIC to fail to qualify as a REMIC or result
in the imposition of a tax upon the Trust Fund (including but not
limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code) unless the Master Servicer
has received an Opinion of Counsel (but not at the expense of the
Master Servicer) to the effect that the contemplated action will
not cause any REMIC to fail to qualify as a REMIC or result in the
imposition of a tax upon any REMIC. The Trustee shall furnish the
Master Servicer, upon written request from a Servicing Officer or
an Authorized Servicer Representative, with any powers of attorney
empowering the Master Servicer, or the Servicer to execute and
deliver instruments of satisfaction or cancellation, or of partial
or full release or discharge, and to foreclose upon or otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in
any court action relating to the Mortgage Loans or the Mortgaged
Property, in accordance with the Servicing Agreement and this
Agreement, and the Trustee shall execute and deliver such other
documents, as the Master Servicer or the Servicer may request, to
enable the Master Servicer to master service and administer the
Mortgage Loans and carry out its duties hereunder, in each case in
accordance with Accepted Master Servicing Practices (and the
Trustee shall have no liability for the misuse of any such powers
of attorney by the Master Servicer or the Servicer and shall be
indemnified by the Master Servicer or the Servicer, as applicable,
for any costs, liabilities or expenses incurred by the Trustee in
connection with such misuse). If the Master Servicer or the Trustee
has been advised that it is likely that the laws of the state in
which action is to be taken prohibit such action if taken in the
name of the Trustee or that the Trustee would be adversely affected
under the “doing business” or tax laws of such state if
such action is taken in its name, the Master Servicer shall join
with the Trustee in the appointment of a co-trustee pursuant to
Section 9.10 hereof. In the performance of its duties hereunder,
the Master Servicer shall be an independent contractor and shall
not, except in those instances where it is taking action authorized
pursuant to this Agreement to be taken by it in the name of the
Trustee, be deemed to be the agent of the Trustee.
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Section 3.06
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Due-on-Sale Clauses; Assumption
Agreements .
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To the extent provided in the
Servicing Agreement and to the extent Mortgage Loans contain
enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicer to enforce such clauses in accordance with the
Servicing Agreement. If applicable law prohibits the enforcement of
a due-on-sale clause or such clause is otherwise not enforced in
accordance with the Servicing Agreement, and, as a consequence, a
Mortgage Loan is assumed, the original Mortgagor may be released
from liability in accordance with the Servicing
Agreement.
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Section 3.07
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Release of Mortgage
Files .
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(a) Upon
becoming aware of Payoff with respect to any Mortgage Loan, or the
receipt by the Servicer of a notification that payment in full has
been escrowed in a manner customary for such purposes for payment
to Certificateholders on the next Distribution Date, the Servicer
will (or if the Servicer does not, the Master Servicer may), if
required under the Servicing Agreement, promptly furnish to the
Custodian, on behalf of the Trustee, two copies of a request for
release substantially in
the form attached to the Custodial
Agreement, and signed by an Authorized Servicer Representative or
in a mutually agreeable electronic format which will, in lieu of a
signature on its face, originate from an Authorized Servicer
Representative (which certification shall include a statement to
the effect that all amounts received in connection with such
payment that are required to be deposited in the Protected Account
maintained by the Servicer pursuant to the Servicing Agreement have
been or will be so deposited) and shall request that the Custodian,
on behalf of the Trustee, deliver to the Servicer the related
Mortgage File. Upon receipt of such certification and request, the
Custodian, on behalf of the Trustee, shall promptly release the
related Mortgage File to the Servicer and the Trustee and Custodian
shall have no further responsibility with regard to such Mortgage
File. Upon any such Payoff, the Servicer is authorized to give, as
agent for the Trustee, as the mortgagee under the Mortgage that
secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged
Property subject to the Mortgage, which instrument of satisfaction
or assignment, as the case may be, shall be delivered to the Person
or Persons entitled thereto against receipt therefor of such
payment, it being understood and agreed that no expenses incurred
in connection with such instrument of satisfaction or assignment,
as the case may be, shall be chargeable to the Distribution
Account.
(b) From
time to time and as appropriate for the servicing or foreclosure of
any Mortgage Loan and in accordance with the Servicing Agreement,
the Trustee shall execute such documents as shall be prepared and
furnished to the Trustee by the Servicer or the Master Servicer (in
form reasonably acceptable to the Trustee) and as are necessary to
the prosecution of any such proceedings. The Custodian, on behalf
of the Trustee, shall, upon the request of the Servicer or the
Master Servicer, and delivery to the Custodian, on behalf of the
Trustee, of two copies of a request for release signed by an
Authorized Servicer Representative substantially in the form
attached to the Custodial Agreement (or in a mutually agreeable
electronic format which will, in lieu of a signature on its face,
originate from an Authorized Servicer Representative), release the
related Mortgage File held in its possession or control to the
Servicer or the Master Servicer, as applicable. Such request for
release shall obligate the Servicer or the Master Servicer to
return the Mortgage File to the Custodian on behalf of the Trustee,
when the need therefor by the Servicer or the Master Servicer no
longer exists unless the Mortgage Loan shall be liquidated, in
which case, upon receipt of a certificate of an Authorized Servicer
Representative similar to that hereinabove specified, the Mortgage
File shall be released by the Custodian, on behalf of the Trustee,
to the Servicer or the Master Servicer.
Section 3.08
Documents, Records and Funds in Possession of Master Servicer To
Be Held for Trustee .
(a) The
Master Servicer shall transmit, and the Servicer (to the extent
required by the Servicing Agreement) shall transmit to the Trustee
or Custodian such documents and instruments coming into the
possession of the Master Servicer or the Servicer from time to time
as are required by the terms hereof, or in the case of the
Servicer, the Servicing Agreement, to be delivered to the Trustee
or Custodian. Any funds received by the Master Servicer or by the
Servicer in respect of any Mortgage Loan or which otherwise are
collected by the Master Servicer or by the Servicer as Liquidation
Proceeds, Insurance Proceeds or Subsequent Recoveries in respect of
any Mortgage Loan shall be held for the benefit of the Trustee and
the Certificateholders subject to the Master Servicer’s right
to retain or withdraw from the Distribution Account the Master
Servicing Compensation and other amounts provided in this
Agreement, and to the right of the Servicer to retain its Servicing
Fee and other amounts as provided in the Servicing Agreement. The
Master Servicer shall, and (to the extent provided in the Servicing
Agreement) shall cause the Servicer to,
