TABLE OF CONTENTS
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ARTICLE I
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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
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CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND
WARRANTIES
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Section 2.01
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Conveyance of Trust Fund.
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Section 2.02
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Acceptance of the Mortgage
Loans.
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Section 2.03
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Representations, Warranties and
Covenants of the Servicer and the Seller.
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Section 2.04
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Representations and Warranties of
the Depositor.
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Section 2.05
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Delivery of Opinion of Counsel in
Connection with Substitutions and
Repurchases.
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Section 2.06
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Issuance of the REMIC I Regular
Interests and the Class R Certificates.
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Section 2.07
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Conveyance of the REMIC I Regular
Interests .
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Section 2.08
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Issuance of Residual
Certificates.
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Section 2.09
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Establishment of Trust.
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ARTICLE III
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ADMINISTRATION AND SERVICING OF THE
MORTGAGE
LOANS
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Section 3.01
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The Servicer to Act as
Servicer.
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Section 3.02
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Due-on-Sale Clauses; Assumption
Agreements.
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Section 3.03
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Subservicers.
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Section 3.04
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Documents, Records and Funds in
Possession of the Servicer To Be Held for
Trustee.
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Section 3.05
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Maintenance of Hazard
Insurance.
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Section 3.06
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Presentment of Claims and Collection
of Proceeds.
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Section 3.07
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Maintenance of Insurance
Policies.
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Section 3.08
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Reserved.
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Section 3.09
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Realization Upon Defaulted Mortgage
Loans; Determination of Excess Liquidation Proceeds and Realized
Losses; Repurchases of Certain Mortgage Loans.
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Section 3.10
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Servicing Compensation.
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Section 3.11
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REO Property.
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Section 3.12
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Liquidation Reports.
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Section 3.13
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Annual Certificate as to
Compliance.
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Section 3.14
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Annual Independent Certified Public
Accountants’ Servicing Report.
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Section 3.15
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Books and Records.
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Section 3.16
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The Trustee.
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Section 3.17
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REMIC-Related Covenants.
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Section 3.18
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Reimbursement of Costs and
Expenses.
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Section 3.19
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Release of Mortgage
Files.
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Section 3.20
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Documents, Records and Funds in Possession of
the Servicer to be held for
Trustee.
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Section 3.21
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Possession of Certain Insurance
Policies and Documents.
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Section 3.22
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Annual Certificate as to
Compliance.
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Section 3.23
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UCC.
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Section 3.24
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Optional Purchase of Defaulted
Mortgage Loans.
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ARTICLE IV
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ACCOUNTS
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Section 4.01
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Collection of Mortgage Loan
Payments; Custodial Account.
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Section 4.02
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Permitted Withdrawals From the
Custodial Account.
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Section 4.03
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Reports to Trustee.
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Section 4.04
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Collection of Taxes; Assessments and
Similar Items; Escrow Accounts.
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Section 4.05
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Adjustments to Mortgage Rate and
Scheduled Payment.
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Section 4.06
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Distribution Account.
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Section 4.07
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Permitted Withdrawals and Transfers
from the Distribution Account.
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Section 4.08
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Duties of the Credit Risk Manager;
Termination.
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Section 4.09
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Limitation Upon Liability of the
Credit Risk Manager.
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ARTICLE V
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ADVANCES AND
DISTRIBUTIONS
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Section 5.01
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Advances; Advance
Facility.
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Section 5.02
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Compensating Interest
Payments.
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Section 5.03
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REMIC Distributions.
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Section 5.04
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Reserved.
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Section 5.05
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Reserved.
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Section 5.06
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Distributions on the
Certificates.
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Section 5.07
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Allocation of Realized Losses
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Section 5.08
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Prepayment Charges.
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Section 5.09
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Monthly Statements to
Certificateholders.
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Section 5.10
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Reserved.
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Section 5.11
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REMIC I Allocations.
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Section 5.12
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Class P Certificate
Account.
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Section 5.13
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Basis Risk Shortfall Reserve
Fund.
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ARTICLE VI
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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
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THE DEPOSITOR AND THE
SERVICER
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Section 7.01
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Liabilities of the Depositor and the
Servicer.
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Section 7.02
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Merger or Consolidation of the
Depositor or the Servicer.
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Section 7.03
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Indemnification of Depositor and the
Servicer.
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Section 7.04
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Limitations on Liability of the
Depositor, the Servicer and Others.
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Section 7.05
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Servicer Not to Resign.
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Section 7.06
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Termination of Servicer Without
Cause; Appointment of Special Servicer.
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ARTICLE VIII
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DEFAULT; TERMINATION OF
SERVICER
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Section 8.01
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Servicer 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 Servicer
Defaults.
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ARTICLE IX
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CONCERNING THE TRUSTEE AND THE
CUSTODIAN
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Section 9.01
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Duties of Trustee.
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Section 9.02
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Certain Matters Affecting the
Trustee.
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Section 9.03
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Trustee Not Liable for Certificates
or Mortgage Loans.
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Section 9.04
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Trustee May Own
Certificates.
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Section 9.05
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Trustee’s Compensation and
Expenses; Indemnification.
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Section 9.06
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Eligibility Requirements for
Trustee.
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Section 9.07
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Insurance.
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Section 9.08
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Resignation and Removal of
Trustee.
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Section 9.09
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Successor Trustee.
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Section 9.10
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Merger or Consolidation of
Trustee.
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Section 9.11
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Appointment of Co-Trustee or
Separate Trustee.
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Section 9.12
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Tax Matters.
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Section 9.13
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Custodian’s Fees and
Expenses.
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Section 9.14
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Indemnification of
Custodian.
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Section 9.15
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Reliance of Custodian.
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ARTICLE X
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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
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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][II]-A-[1][2]
Certificates
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Exhibit A-2
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Form of Class [III][IV]-A-[1][2][3]
Certificates
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Exhibit A-3
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Form of Class M-[1][2][3][4][5]
Certificates
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Exhibit A-4
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Form of Class X
Certificates
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Exhibit A-5
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Form of Class P
Certificates
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Exhibit A-6
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Form of Class R
Certificates
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Exhibit B
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Mortgage Loan Schedule
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Exhibit C-1
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Form of Initial
Certification
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Exhibit C-2
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Form of Interim
Certification
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Exhibit C-3
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Form of Final
Certification
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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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Form of Request for
Release
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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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Form of Servicer’s
Certification
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Exhibit M
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Form of Trustee’s
Certification
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Exhibit N
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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 April 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”), GMAC MORTGAGE CORPORATION, a Pennsylvania
corporation, as servicer (the “Servicer”) and JPMORGAN
CHASE BANK, N.A., a national banking association, not in its
individual capacity, but solely as trustee (the
“Trustee”) and as custodian (the
“Custodian”).
PRELIMINARY STATEMENT
The Depositor is the owner of the
Trust Fund that is hereby conveyed to the Trustee in return for the
Certificates.
REMIC I
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the Mortgage Loans and certain other related assets subject to
this Agreement as a real estate mortgage investment conduit (a
“REMIC”) for federal income tax purposes, and such
segregated pool of assets will be designated as “REMIC
I.” The R-I Interest will represent the sole class of
“residual interests” in REMIC I for purposes of the
REMIC Provisions (as defined herein) under federal income tax law.
The following table irrevocably sets forth the designation, the
Uncertificated REMIC I Pass-Through Rate, the Initial
Uncertificated Principal Balance, and for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC I
Regular Interests. None of the REMIC I Regular Interests will be
certificated.
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Initial Uncertificated
Principal Balance
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Uncertificated
REMIC I
Pass-Through Rate
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Assumed Final Distribution Date
(1)
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LTI-AA
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$ 247,171,927.60
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(2)
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May 25, 2035
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LTI-IA
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$ 160,540.00
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(2)
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May 25, 2035
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LTI-IIA1
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$ 455,570.00
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(2)
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May 25, 2035
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LTI-IIA2
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$ 50,620.00
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(2)
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May 25, 2035
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LTI-IIIA1
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$ 312,235.00
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(2)
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May 25, 2035
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LTI-IIIA2
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$ 309,260.00
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(2)
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May 25, 2035
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LTI-IIIA3
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$ 69,055.00
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(2)
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May 25, 2035
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LTI-IVA1
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$ 794,160.00
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(2)
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May 25, 2035
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LTI-IVA2
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$ 88,240.00
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(2)
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May 25, 2035
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LTI-M1
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$ 148,810.00
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(2)
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May 25, 2035
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LTI-M2
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$ 50,950.00
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(2)
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May 25, 2035
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LTI-M3
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$ 28,500.00
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(2)
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May 25, 2035
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LTI-M4
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$ 18,915.00
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(2)
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May 25, 2035
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LTI-M5
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$ 18,913.47
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(2)
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May 25, 2035
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LTI-ZZ
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$ 2,538,557.58
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(2)
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May 25, 2035
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LTI-P
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$ 100.00
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(3)
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May 25, 2035
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LTI-1SUB
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$ 404.98
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(2)
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May 25, 2035
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LTI-1GRP
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$ 3,615.78
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(2)
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May 25, 2035
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LTI-2SUB
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$ 1,276.83
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(2)
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May 25, 2035
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LTI-2GRP
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$ 11,400.63
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(2)
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May 25, 2035
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LTI-3SUB
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$ 1,741.97
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(2)
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May 25, 2035
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LTI-3GRP
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$ 15,552.97
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(2)
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May 25, 2035
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LTI-4SUB
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$ 2,225.87
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(2)
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May 25, 2035
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LTI-4GRP
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$ 19,873.87
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(2)
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May 25, 2035
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LTI-XX
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$ 252,160,159.75
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(2)
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May 25, 2035
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___________________
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(1)
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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.
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(2)
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Calculated in accordance with the
definition of “Uncertificated REMIC I Pass-Through
Rate” herein.
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(3)
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The REMIC I Regular Interest LTI-P
will not be entitled to distributions of interest.
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REMIC II
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as
“REMIC II”. The R-II Interest will represent the sole
class of “residual interests” in REMIC II for purposes
of the REMIC Provisions. The following table irrevocably sets forth
the Class designation, Pass-Through Rate and Initial Certificate
Principal Balance for each Class of Certificates and uncertificated
REMIC II Regular Interests that represents one or more of the
“regular interests” in REMIC II created
hereunder:
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Initial Certificate
Principal Balance
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Assumed Final Distribution Date
(1)
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Class I-A
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$ 32,108,000.00
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Class I-A Pass Through Rate
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May 25, 2035
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Class II-A-1
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$ 91,114,000.00
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Class II-A-1 Pass Through Rate
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May 25, 2035
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Class II-A-2
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$ 10,124,000.00
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Class II-A-2 Pass Through Rate
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May 25, 2035
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Class III-A-1
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$ 62,447,000.00
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Class III-A-1 Pass Through Rate
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May 25, 2035
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Class III-A-2
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$ 61,852,000.00
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Class III-A-2 Pass Through Rate
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May 25, 2035
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Class III-A-3
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$ 13,811,000.00
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Class III-A-3 Pass Through Rate
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May 25, 2035
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Class IV-A-1
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$ 158,832,000.00
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Class IV-A-1 Pass Through Rate
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May 25, 2035
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Class IV-A-2
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$ 17,648,000.00
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Class IV-A-2 Pass Through Rate
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May 25, 2035
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Class M-1
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$ 29,762,000.00
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Class M-1 Pass Through Rate
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May 25, 2035
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Class M-2
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$ 10,190,000.00
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Class M-2 Pass-Through Rate
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May 25, 2035
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Class M-3
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$ 5,700,000.00
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Class M-3 Pass Through Rate
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May 25, 2035
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Class M-4
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$ 3,783,000.00
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Class M-4 Pass Through Rate
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May 25, 2035
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Class M-5
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$ 3,782,694.00
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Class M-5 Pass Through Rate
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May 25, 2035
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Class X (2)
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$ 3,278,811.30
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Class X Pass Through Rate
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May 25, 2035
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Class P
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$ 100.00
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N/A (3)
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May 25, 2035
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___________________
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(1)
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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.
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(2)
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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).
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3)
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The Class P Certificates will not be
entitled to distributions of interest.
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In consideration of the mutual
agreements herein contained, the Depositor, the Servicer, the
Seller and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
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Section 1.01
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Defined Terms
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In addition to those terms defined
in Section 1.02, whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires,
shall have the following meanings:
Account : Either the Distribution Account or the
Custodial Account.
Accrual Period
: With respect to the Group I, Group
II and Class X Certificates and any Distribution Date, the calendar
month immediately preceding such Distribution Date. With respect to
the Group III, Group IV and Subordinate Certificates and any
Distribution Date, the period commencing on the immediately
preceding Distribution Date (or with respect to the first Accrual
Period, the Closing Date) and ending on the day immediately
preceding the related Distribution Date. All calculations of
interest on the Group I, Group II and Class X Certificates will be
based on a 360-day year consisting of twelve 30-day months. All
calculations of interest on the Group III, Group IV and Subordinate
Certificates will be made based on a 360-day year and the actual
number of days elapsed in the related Accrual Period.
Adjustment Date
: With respect to each Mortgage
Loan, the first day of the month in which the Mortgage Rate of the
Mortgage Loan changes pursuant to the related Mortgage Note. The
first Adjustment Date following the Cut-Off Date as to each
Mortgage Loan is set forth in the Loan Schedule.
Advance : An advance of delinquent payments of principal
or interest in respect of a Mortgage Loan required to be made by
the Servicer pursuant to Section 5.01 or by the Trustee in its
capacity as Successor Servicer pursuant to
Section 5.01.
Advance Facility
: As defined in
Section 5.01(b)(i).
Advance Facility
Notice : As defined in
Section 5.01(b)(ii).
Advance Financing
Person : As defined in
Section 5.01(b)(i).
Advance Reimbursement
Amount : As defined in
Section 5.01(b)(ii).
Aggregate Loan Balance
: With respect to the Mortgage Loans
and any Distribution Date, the aggregate of the Stated Principal
Balances of the Mortgage Loans as of the last day of the related
Due Period.
Aggregate Loan Group
Balance: With respect to
a Loan Group and any Distribution Date, the aggregate of the Stated
Principal Balances of the Mortgage Loans in such Loan Group as of
the last day of the related Due Period.
Agreement : This Pooling and Servicing Agreement and any
and all amendments or supplements hereto made in accordance with
the terms herein.
Amount Held for Future
Distribution : As to any
Distribution Date, the aggregate amount held in the Custodial
Account at the close of business on the immediately preceding
Determination Date on account of (i) all Scheduled Payments or
portions thereof received in respect of the Mortgage Loans due
after the related Due Period and (ii) Principal Prepayments and
Liquidation Proceeds received in respect of the Mortgage Loans
after the last day of the related Prepayment Period.
Applied Loss Amount
: With respect to the Publicly
Offered Certificates and any Distribution Date, the excess of the
aggregate Certificate Principal Balance of the Publicly Offered
Certificates over the Aggregate Loan Balance of the Mortgage Loans
after giving effect to all Realized Losses incurred with respect to
the Mortgage Loans during the related Due Period and payments of
principal to the Publicly Offered Certificates on such Distribution
Date.
Appraised Value
: With respect to any Mortgage Loan
originated in connection with a refinancing, the appraised value of
the Mortgaged Property based upon the appraisal made at the time of
such refinancing or, with respect to any other Mortgage Loan, the
lesser of (x) the appraised value of the Mortgaged Property based
upon the appraisal made by a fee appraiser at the time of the
origination of the Mortgage Loan, and (y) the sales price of the
Mortgaged Property at the time of such origination.
Assumed Final Distribution
Date : The Distribution
Date in May 2035.
Authorized Servicer
Representative : Those
Servicer representatives, authorized to execute a Request for
Release on behalf of the Servicer, whose name and facsimile
signature appear on a list furnished to the Trustee by the Servicer
on the Closing Date pursuant to this Agreement, as such list may be
amended by the Servicer from time-to-time.
Bankruptcy Code
: Title 11 of the United States
Code.
Basis Risk Shortfall Reserve
Fund : The segregated
non-interest bearing trust account created and maintained by the
Trustee pursuant to Section 5.13 hereof.
Basis Risk Shortfall:
With respect to any Class of Group
III, Group IV or Subordinate Certificates and any Distribution
Date, the sum of (i) the excess, if any, of the related Current
Interest (calculated without regard to the Net Funds Cap) over the
related Current Interest for the applicable Distribution Date; (ii)
any amount described in clause (i) remaining unpaid from prior
Distribution Dates; and (iii) interest on the amount in clause (ii)
for the related Accrual Period calculated without regard to the Net
Funds Cap.
Book-Entry
Certificates : Any of the
Certificates that shall be registered in the name of the Depository
or its nominee, the ownership of which is reflected on the books of
the Depository or on the books of a person maintaining an account
with the Depository (directly, as a “Depository
Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in
Section 6.06). As of the Closing Date, each Class of Publicly
Offered Certificates constitutes a Class of Book-Entry
Certificates.
Business Day
: Any day other than (i) a Saturday
or a Sunday, or (ii) a day on which banking institutions in The
City of New York, New York, the Commonwealth of
Pennsylvania,
the city in which the Corporate
Trust Office of the Trustee is located or the States in which the
Servicer’s servicing operations are located are authorized or
obligated by law or executive order to be closed.
Cap Contract
: Shall mean the cap contract
between the Trustee and the counterparty named thereunder, for the
benefit of the Holders of the Class III-A-2, Class III-A-3 and
Class IV-A-2 Certificates.
Cap Rate : With respect to the Group III, Group IV and
Subordinate Certificates, 11.00% per annum.
Carryforward Interest
: With respect to any Class of
Publicly Offered Certificates and any Distribution Date, the sum of
(i) the amount, if any, by which (x) the sum of (A) Current
Interest for that Class of Certificates for the immediately
preceding Distribution Date and (B) any unpaid Carryforward
Interest for such Class from previous Distribution Dates exceeds
(y) the actual amount distributed on such Class in respect of
interest on the immediately preceding Distribution Date and (ii)
interest on such amount for the related Accrual Period at the
applicable Pass-Through Rate.
Certificate
: Any one of the certificates of any
Class executed and authenticated by the Trustee in substantially
the forms attached hereto as Exhibits A-1 through A-6.
Certificate Margin
: With respect to each Distribution
Date on or prior to the first possible Optional Termination Date,
0.250%, 0.220%, 0.250%, 0.230%, 0.275%, 0.500%, 0.650%, 0.780%,
1.250% and 1.850%, for the Class III-A-1, Class III-A-2, Class
III-A-3, Class IV-A-1, Class IV-A-2, Class M-1, Class M-2, Class
M-3, Class M-4 and Class M-5 Certificates, respectively. With
respect to each Distribution Date following the first possible
Optional Termination Date, 0.500%, 0.440%, 0.500%, 0.460%, 0.550%,
1.000%, 1.150%, 1.280%, 1.750% and 2.350%, for the Class III-A-1,
Class III-A-2, Class III-A-3, Class IV-A-1, Class IV-A-2, Class
M-1, Class M-2, Class M-3, Class M-4 and Class M-5 Certificates,
respectively.
Certificate Notional
Balance : With respect to
the Class X Certificates and any Distribution Date, the
Uncertificated 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 $504,432,505.30.
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 II-A-2, Class III-A-3, Class IV-A-2
Certificate or any Class of Subordinate Certificates, any
reductions in the Certificate Principal Balance of such Certificate
deemed to have occurred in connection with the allocations of
Realized Losses, if any, plus (ii) with respect to the Class
II-A-2, Class III-A-3 and Class IV-A-2 Certificates or Subordinate
Certificates, any Subsequent Recoveries added to the Certificate
Principal Balance of any such
Certificate pursuant to
Section 5.07(d), in each case up to the amount of Applied Loss
Amounts but only to the extent that any such Applied Loss Amount
has not been paid to any Class of Certificates as a Deferred
Amount. With respect to the Class X Certificates and any date of
determination, the excess, if any, of (i) the then Aggregate Loan
Balance over (ii) the then aggregate Certificate Principal Balance
of the Publicly Offered Certificates. References herein to the
Certificate Principal Balance of a Class of Certificates shall mean
the Certificate Principal Balances of all Certificates in such
Class.
Certificate Register
: The register maintained pursuant
to Section 6.02.
Certificateholder or
Holder : The person in
whose name a Certificate is registered in the Certificate Register
(initially, Cede & Co., as nominee for the Depository, in the
case of any Book-Entry Certificates).
Class : All Certificates bearing the same Class
designation as set forth in Section 6.01.
Class I-A 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
each Distribution Date, a per annum rate equal to the weighted
average Net Mortgage Rate of the Group I Mortgage Loans.
Class II-A-1
Certificate : Any
Certificate designated as a “Class II-A-1 Certificate”
on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to its Percentage Interest of distributions
provided for the Class II-A-1 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class II-A-1 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the weighted
average Net Mortgage Rate of the Group II Mortgage
Loans.
Class II-A-2
Certificate : Any
Certificate designated as a “Class II-A-2 Certificate”
on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to its Percentage Interest of distributions
provided for the Class II-A-2 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class II-A-2 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the weighted
average Net Mortgage Rate of the Group II Mortgage
Loans.
Class III-A-1
Certificate : Any
Certificate designated as a “Class III-A-1 Certificate”
on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to its Percentage Interest of distributions
provided for the Class III-A-1 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class III-A-1 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.250% or
(B) after the first possible
Optional Termination Date, 0.500%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class III-A-2
Certificate : Any
Certificate designated as a “Class III-A-2 Certificate”
on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to its Percentage Interest of distributions
provided for the Class III-A-2 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class III-A-2 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.220% or
(B) after the first possible Optional Termination Date, 0.440%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class III-A-3
Certificate : Any
Certificate designated as a “Class III-A-3 Certificate”
on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to its Percentage Interest of distributions
provided for the Class III-A-3 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class III-A-3 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.250% or
(B) after the first possible Optional Termination Date, 0.500%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class IV-A-1
Certificate : Any
Certificate designated as a “Class IV-A-1 Certificate”
on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to its Percentage Interest of distributions
provided for the Class IV-A-1 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class IV-A-1 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.230% or
(B) after the first possible Optional Termination Date, 0.460%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class IV-A-2
Certificate : Any
Certificate designated as a “Class IV-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 IV-A-2 Certificates as set forth herein and
evidencing a Regular Interest in REMIC II.
Class IV-A-2 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.275% or
(B) after the first possible Optional Termination Date, 0.550%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class M-1 Certificate
: Any Certificate designated as a
“Class M-1 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its
Percentage Interest of distributions provided for the Class M-1
Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class M-1 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.500% or
(B) after the first possible Optional Termination Date, 1.000%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class M-1 Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the sum of (i) the
Certificate Principal Balances of the Senior Certificates, in each
case, after giving effect to payments on such Distribution Date and
(ii) the Certificate Principal Balance of the Class M-1
Certificates immediately prior to such Distribution Date exceeds
(y) the lesser of (A) the product of (i) approximately 89.40% and
(ii) the Aggregate Loan Balance for such Distribution Date and (B)
the amount, if any, by which (i) the Aggregate Loan Balance for
such Distribution Date exceeds (ii) 0.50% of the Aggregate Loan
Balance as of the Cut-off Date.
Class M-2 Certificate
: Any Certificate designated as a
“Class M-2 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its
Percentage Interest of distributions provided for the Class M-2
Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class M-2 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on
or prior to the first possible Optional Termination Date, 0.650% or
(B) after the first possible Optional Termination Date, 1.150%,
(ii) the applicable Net Funds Cap, (iii) the Maximum Interest Rate
and (iv) the applicable Cap Rate.
Class M-2 Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the sum of (i) the
Certificate Principal Balances of the Senior Certificates and the
Class M-1 Certificates, in each case, after giving effect to
payments on such Distribution Date and (ii) the Certificate
Principal Balance of the Class M-2 Certificates immediately prior
to such Distribution Date exceeds (y) the lesser of (A) the product
of (i) approximately 93.44% and (ii) the Aggregate Loan Balance for
such Distribution Date and (B) the amount, if any, by which (i) the
Aggregate Loan Balance for such Distribution Date exceeds (ii)
0.50% of the Aggregate Loan Balance as of the Cut-off
Date.
Class M-3 Certificate
: Any Certificate designated as a
“Class M-3 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its
Percentage Interest of distributions provided for the Class M-3
Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class M-3 Pass-Through
Rate : With respect to
each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus
(A) on or prior to the first possible Optional Termination
Date, 0.780% or (B) after the first possible Optional Termination
Date, 1.280%, (ii) the applicable Net Funds Cap, (iii) the Maximum
Interest Rate and (iv) the applicable Cap Rate.
Class M-3 Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the sum of (i) the
Certificate Principal Balances of the Senior, Class M-1
Certificates and Class M-2 Certificates, in each case, after giving
effect to payments on such Distribution Date and (ii) the
Certificate Principal Balance of the Class M-3 Certificates
immediately prior to such Distribution Date exceeds (y) the lesser
of (A) the product of (i) approximately 95.70% and (ii) the
Aggregate Loan Balance for such Distribution Date and (B) the
amount, if any, by which (i) the Aggregate Loan Balance for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Loan Balance
as of the Cut-off Date.
Class M-4 Certificate
: Any Certificate designated as a
“Class M-4 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its
Percentage Interest of distributions provided for the Class M-4
Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class M-4 Pass-Through
Rate : With respect to
each Distribution Date thereafter, a per annum rate equal to the
least of (i) the sum of One-Month LIBOR for that Distribution Date
plus (A) on or prior to the first possible Optional
Termination Date, 1.250% or (B) after the first possible Optional
Termination Date, 1.750%, (ii) the applicable Net Funds Cap, (iii)
the Maximum Interest Rate and (iv) the applicable Cap
Rate.
Class M-4 Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the sum of (i) the
Certificate Principal Balances of the Senior, Class M-1, Class M-2
and Class M-3 Certificates, in each case, after giving effect to
payments on such Distribution Date and (ii) the Certificate
Principal Balance of the Class M-4 Certificates immediately prior
to such Distribution Date exceeds (y) the lesser of (A) the product
of (i) approximately 97.20% and (ii) the Aggregate Loan Balance for
such Distribution Date and (B) the amount, if any, by which (i) the
Aggregate Loan Balance for such Distribution Date exceeds (ii)
0.50% of the Aggregate Loan Balance as of the Cut-off
Date.
Class M-5 Certificate
: Any Certificate designated as a
“Class M-5 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its
Percentage Interest of distributions provided for the Class M-5
Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class M-5 Pass-Through
Rate : With respect to
each Distribution Date thereafter, a per annum rate equal to the
least of (i) the sum of One-Month LIBOR for that Distribution Date
plus (A) on or prior to the first possible Optional
Termination Date, 1.850% or (B) after the first possible Optional
Termination Date, 2.350%, (ii) the applicable Net Funds Cap, (iii)
the Maximum Interest Rate and (iv) the applicable Cap
Rate.
Class M-5 Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the sum of (i) the
Certificate Principal Balances of the Senior, Class M-1, Class M-2,
Class M-3 and Class M-4 Certificates, in each case, after giving
effect to payments on such Distribution Date and (ii) the
Certificate Principal Balance of the Class M-5 Certificates
immediately prior to such Distribution Date exceeds (y) the lesser
of (A) the product of (i) approximately 98.70% and (ii) the
Aggregate Loan Balance for such Distribution Date and (B) the
amount, if any, by which (i) the Aggregate Loan Balance for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Loan Balance
as of the Cut-off Date.
Class P Certificate
: Any Certificate designated as a
“Class P Certificate” on the face thereof, in the form
of Exhibit A-5 hereto, representing the right to its Percentage
Interest of distributions provided for the Class P Certificates as
set forth herein and evidencing a Regular Interest in REMIC
II.
Class P Certificate
Account : The Eligible
Account established and maintained by the Trustee pursuant to
Section 5.12(a).
Class R Certificate
: Any Certificate designated as a
“Class R” Certificate on the face thereof in the form
of Exhibit A-6 hereto, representing the right to its Percentage
Interest of distributions provided for the Class R Certificates as
set forth herein and evidencing the Class R-I Interest and Class
R-II Interest.
Class R-I Interest
: The uncertificated Residual
Interest in REMIC I.
Class R-II Interest
: The uncertificated Residual
Interest in REMIC II.
Class X Certificate
: Any Certificate designated as a
“Class X Certificate” on the face thereof, in the form
of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class X Certificates as
set forth herein and evidencing a Regular Interest in REMIC
II.
Class X Distribution
Amount : With respect to
any Distribution Date and the Class X Certificates, the sum of (i)
the Excess Cap Payment, (ii) the Current Interest and Carryforward
Interest and (iii) any Overcollateralization Release Amount for
such Distribution Date remaining after payments pursuant to items 1
though 13 of clause 5.06(iii); provided, however that on and after
the Distribution Date on which the Certificate Principal Balances
of the Publicly Offered Certificates have been reduced to zero, the
Class X Distribution Amount shall include the Overcollateralization
Amount.
Class X Pass-Through
Rate : On any
Distribution Date, a per annum rate equal to the percentage
equivalent of a fraction, the numerator of which is the sum of the
amounts calculated pursuant to clauses (A) through (O) below, and
the denominator of which is the aggregate of the Uncertificated
Principal Balances of REMIC I Regular Interest LTI-AA, REMIC I
Regular Interest LTI-IA, REMIC I Regular Interest LTI-IIA1, REMIC I
Regular Interest LTI-IIA2, REMIC I Regular Interest LTI-IIIA1,
REMIC I Regular Interest LTI-IIIA2, REMIC I Regular Interest
LTI-IIIA3, REMIC I Regular Interest LTI-IVA1, REMIC I Regular
Interest LTI-IVA2,
REMIC I Regular Interest LTI-M1,
REMIC I Regular Interest LTI-M2, REMIC I Regular Interest LTI-M3,
REMIC I Regular Interest LTI-M4, REMIC I Regular Interest LTI-M5
and REMIC I Regular Interest LTI-ZZ. For purposes of calculating
the Pass-Through Rate for the Class X Certificates, the
numerator is equal to the sum of the following
components:
(A) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-AA minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-AA;
(B) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-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-IIA1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-IIA1;
(D) 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;
(E) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIIA1, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIIA1;
(F) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIIA2, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIIA2;
(G) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IIIA3, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IIIA3;
(H) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IVA1, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IVA1;
(I) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-IVA2, minus the Marker Rate, applied to an amount
equal to the Uncertificated Principal Balance of REMIC I Regular
Interest LTI-IVA2;
(J) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M1;
(K) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M2;
(L) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M3 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M3;
(M) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M4 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M4;
(N) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-M5 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-M5; and
(O) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LTI-ZZ minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC I Regular Interest
LTI-ZZ.
Cleanup Call
: As defined in
Section 10.01.
Closing Date
: April 28, 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 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.
Corporate Trust Office
: The designated office of the
Trustee where at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office
at the date of the execution of this Agreement is located at 4 New
York Plaza, 6 th Floor, New York, New York 10004,
Attention: Institutional Trust Services/Global Debt, Nomura Asset
Acceptance Corporation, Alternative Loan Trust, Series 2005-AR2, or
at such other address as the Trustee may designate from time to
time.
Corresponding Certificate: With
respect to :
|
(i)
|
REMIC I Regular Interest LTI-IA, the
Class I-A Certificates;
|
|
|
(ii)
|
REMIC I Regular Interest LTI-IIA1,
the Class II-A-1 Certificates;
|
|
|
(iii)
|
REMIC I Regular Interest LTI-IIA2,
the Class II-A-2 Certificates;
|
|
|
(iv)
|
REMIC I Regular Interest LTI-IIIA1,
the Class III-A-1 Certificates;
|
|
|
(v)
|
REMIC I Regular Interest LTI-IIIA2,
the Class III-A-2 Certificates;
|
|
|
(vi)
|
REMIC I Regular Interest LTI-IIIA3,
the Class III-A-3 Certificates;
|
|
|
(vii)
|
REMIC I Regular Interest LTI-IVA1,
the Class IV-A-1 Certificates;
|
|
(viii)
|
REMIC I Regular Interest LTI-IVA2
the Class IV-A-2 Certificates;
|
|
|
(ix)
|
REMIC I Regular Interest LTI-M1, the
Class M-1 Certificates;
|
|
|
(x)
|
REMIC I Regular Interest LTI-M2, the
Class M-2 Certificates;
|
|
|
(xi)
|
REMIC I Regular Interest LTI-M3, the
Class M-3 Certificates;
|
|
|
|
|
|
|
|
|
|
|
(xii)
|
REMIC I Regular Interest LTI-M4, the
Class M-4 Certificates;
|
|
|
(xiii)
|
REMIC I Regular Interest LTI-M5, the
Class M-5 Certificates; and
|
|
(xiv)
|
REMIC I Regular Interest LTI-P, the
Class P Certificates.
|
|
|
|
|
|
|
Credit Risk Management
Agreement : The agreement
between the Credit Risk Manager and the Servicer, dated as of
April 28, 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 4.07(a)(vii) and 4.08(b).
Credit Risk Management Fee
Rate : 0.015% per
annum.
Credit Risk Manager
: The Murrayhill Company, a Colorado
corporation.
Current Interest
: With respect to any Class of
Publicly Offered Certificates and any Distribution Date, the amount
of interest accruing at the applicable Pass-Through Rate on the
related Certificate Principal Balance during the related Accrual
Period; provided, that as to each Class of Publicly Offered
Certificates, the Current Interest will be reduced by a pro rata
portion of any Net Interest Shortfalls to the extent not covered by
excess interest. No Current Interest will be payable with respect
to any Class of Publicly Offered Certificates after the
Distribution Date on which the outstanding Certificate Principal
Balance of such Certificate has been reduced to zero.
Custodial Account
: The account established and
maintained by the Servicer with respect to receipts on the Mortgage
Loans and related REO Properties in accordance with
Section 4.01.
Custodian : JPMorgan Chase Bank, N.A., a national banking
association.
Cut-off Date
: April 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.
Deferred Amount
: With respect to the Class II-A-2,
Class III-A-3 or Class IV-A-2 Certificates or any Class of
Subordinate Certificates and any Distribution Date, the amount by
which (x) the aggregate of the Applied Loss Amounts previously
applied in reduction of the Certificate Principal Balance thereof
exceeds (y) the aggregate of amounts previously paid in
reimbursement thereof and the amount
by which the Certificate Principal Balance of any such Class has
been increased due to the collection of Subsequent
Recoveries.
Deficient Valuation
: Means the difference between the
Stated Principal Balance of a Mortgage Loan and a reduced secured
debt as a result of a bankruptcy court establishing the value of
the Mortgaged Property at an amount less than the then Stated
Principal Balance of the Mortgage Loan in connection with a
bankruptcy of the related Mortgagor.
Definitive
Certificates : As defined
in Section 6.06.
Deleted Mortgage Loan
: A Mortgage Loan replaced or to be
replaced by a Replacement Mortgage Loan.
Delinquency Rate
: With respect to the Mortgage Loans
and any calendar month will be, generally, the fraction, expressed
as a percentage, the numerator of which is the Aggregate Loan
Balance of all Mortgage Loans sixty (60) or more days delinquent
(including all Mortgage Loans in bankruptcy or foreclosure and all
REO Properties) as of the close of business on the last day of such
month, and the denominator of which is the Aggregate Loan Balance
as of the close of business on the last day of such
month.
Delinquent
: A Mortgage Loan is
“delinquent” if any payment due thereon is not made
pursuant to the terms of such Mortgage Loan by the close of
business on the day such payment is scheduled to be due. A Mortgage
Loan is “30 days delinquent” if such payment has not
been received by the close of business on the corresponding day of
the month immediately succeeding the month in which such payment
was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on
the 31st day of such month), then on the last day of such
immediately succeeding month. Similarly for “60 days
delinquent,” “90 days delinquent” and so
on.
Denomination
: With respect to each Certificate,
the amount set forth on the face thereof as the “Initial
Certificate Principal Balance of this
Certificate”.
Depositor : Nomura Asset Acceptance Corporation, a
Delaware corporation, or its successor in interest.
Depository
: The initial Depository shall be
The Depository Trust Company (“DTC”), the nominee of
which is Cede & Co., or any other organization registered as a
“clearing agency” pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended. The Depository shall
initially be the registered Holder of the Book-Entry Certificates.
The Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York.
Depository Agreement
: With respect to the Class of
Book-Entry Certificates, the agreement among the Depositor, the
Trustee and the initial Depository, dated as of the Closing Date,
substantially in the form of Exhibit I.
Depository Participant
: A broker, dealer, bank or other
financial institution or other Person for whom from time to time a
Depository effects book-entry transfers and pledges of securities
deposited with the Depository.
Determination Date
: With respect to any Distribution
Date, the 15th day of the month of such Distribution Date or, if
such 15th day is not a Business Day, the immediately preceding
Business Day.
Distribution Account
: Each trust account or accounts
related to the Mortgage Loans created and maintained by the Trustee
pursuant to Section 4.06 in the name of the Trustee for the
benefit of the Certificateholders and designated “JPMorgan
Chase Bank, N.A., in trust for registered holders of Nomura Asset
Acceptance Corporation, Mortgage Pass-Through Certificates, Series
2005-AR2”. Funds in the Distribution Account shall be held in
trust for the Certificateholders for the uses and purposes set
forth in this Agreement. The Distribution Account shall be an
Eligible Account.
Distribution Date
: The 25th day of each calendar
month after the initial issuance of the Certificates, or if such
25th day is not a Business Day, the next succeeding Business Day,
commencing in May 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 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.
Escrow Account
: Shall mean the account or accounts
maintained by the Servicer pursuant to Section 4.04. Each
Escrow Account shall be an Eligible Account.
ERISA : The Employee Retirement Income Security Act of
1974, as amended.
ERISA Restricted
Certificate : Each of the
Class X, Class P and Residual Certificates.
Excess Cap Payment
: With respect to any Distribution
Date, the excess, if any, of (1) the cap payments made by the
counterparty under the Cap Contracts, over (2) the amount of the
Basis Risk Shortfalls attributable to the Class III-A-2, Class
III-A-3 or Class IV-A-2 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.
Exemption : Prohibited Transaction Exemption 93-32, as
amended from time to time.
Fannie Mae
: Fannie Mae (formerly, Federal
National Mortgage Association), or any successor
thereto.
FDIC : The Federal Deposit Insurance Corporation, or
any successor thereto.
Final Certification
: The certification of the Custodian
in the form attached hereto as Exhibit C-3.
Final Recovery
Determination : With
respect to any defaulted Mortgage Loan or any REO Property (other
than a Mortgage Loan or REO Property purchased by the Seller or the
Majority Class X Certificateholder pursuant to or as contemplated
by Section 2.03(c) or Section 10.01), a determination
made by the Servicer pursuant to this Agreement that all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries
which the Servicer, in its reasonable good faith judgment, expects
to be finally recoverable in respect thereof have been so
recovered. The Trustee shall maintain records, based solely on
information provided by the Servicer, of each Final Recovery
Determination made thereby.
FIRREA : The Financial Institutions Reform, Recovery,
and Enforcement Act of 1989, as amended.
Freddie Mac
: Federal Home Loan Mortgage
Corporation, or any successor thereto.
Gross Margin
: With respect to each Mortgage
Loan, the fixed percentage set forth in the related Mortgage Note
that is added to the Index on each Adjustment Date in accordance
with the terms of the related Mortgage Note used to determine the
Mortgage Rate for such Mortgage Loan.
Group I Certificates
: The Class I-A
Certificates.
Group I Allocation
Amount :
With respect to any Distribution
Date, the product of the Senior Principal Payment Amount for that
Distribution Date and a fraction the numerator of which is the
Principal Remittance Amount derived from the Group I Mortgage Loans
and the
denominator of which is the
Principal Remittance Amount, in each case for that Distribution
Date.
Group I Excess Interest
Amount :
With respect to any Distribution
Date, the product of the Monthly Excess Interest required to be
distributed on that Distribution Date pursuant to
Section 5.06(iii)(1)(A) and a fraction the numerator of which
is the Principal Remittance Amount derived from the Group I
Mortgage Loans and the denominator of which is Principal Remittance
Amount, in each case for that Distribution Date.
Group I Mortgage Loans
: Those Mortgage Loans identified on
the Mortgage Loan Schedule as Group I Mortgage Loans.
Group II Certificates
: The Class II-A-1 Certificates and
Class II-A-2 Certificates.
Group II Allocation
Amount :
With respect to any Distribution
Date, the product of the Senior Principal Payment Amount for that
Distribution Date and a fraction the numerator of which is the
Principal Remittance Amount derived from the Group II Mortgage
Loans and the denominator of which is the Principal Remittance
Amount, in each case for that Distribution Date.
Group II Excess Interest
Amount :
With respect to any Distribution
Date, the product of the Monthly Excess Interest required to be
distributed on that Distribution Date pursuant to
Section 5.06(iii)(1)(A) and a fraction the numerator of which
is the Principal Remittance Amount derived from the Group II
Mortgage Loans and the denominator of which is Principal Remittance
Amount, in each case for that Distribution Date.
Group II Mortgage
Loans : Those Mortgage
Loans identified on the Mortgage Loan Schedule as Group II Mortgage
Loans.
Group III Certificates
: The Class III-A-1, Class III-A-2
and Class III-A-3 Certificates.
Group III Allocation
Amount :
With respect to any Distribution
Date, the product of the Senior Principal Payment Amount for that
Distribution Date and a fraction the numerator of which is the
Principal Remittance Amount derived from the Group III Mortgage
Loans and the denominator of which is the Principal Remittance
Amount, in each case for that Distribution Date.
Group III Excess Interest
Amount :
With respect to any Distribution
Date, the product of the Monthly Excess Interest required to be
distributed on that Distribution Date pursuant to
Section 5.06(iii)(1)(A) and a fraction the numerator of which
is the Principal Remittance Amount derived from the Group III
Mortgage Loans and the denominator of which is Principal Remittance
Amount, in each case for that Distribution Date.
Group III Mortgage
Loans : Those Mortgage
Loans identified on the Mortgage Loan Schedule as Group III
Mortgage Loans.
Group IV Certificates
: The Class IV-A-1 Certificates and
Class IV-A-2 Certificates.
Group IV Allocation
Amount :
With respect to any Distribution
Date, the product of the Senior Principal Payment Amount for that
Distribution Date and a fraction the numerator of which is the
Principal Remittance Amount derived from the Group IV Mortgage
Loans and the denominator of which is the Principal Remittance
Amount, in each case for that Distribution Date.
Group IV Excess Interest
Amount :
With respect to any Distribution
Date, the product of the Monthly Excess Interest required to be
distributed on that Distribution Date pursuant to
Section 5.06(iii)(1)(A) and a fraction the numerator of which
is the Principal Remittance Amount derived from the Group IV
Mortgage Loans and the denominator of which is Principal Remittance
Amount, in each case for that Distribution Date.
Group IV Mortgage
Loans : Those Mortgage
Loans identified on the Mortgage Loan Schedule as Group IV Mortgage
Loans.
Group IV Trigger Event
: For any Distribution Date, if (i)
before the 37th Distribution Date following the Closing Date, the
aggregate amount of Realized Losses incurred during the period from
the Cut-off Date through the last day of the related Prepayment
Period divided by the Aggregate Loan Balance as of the Cut-off Date
exceeds 1.10%, or (ii), on or after the 37th Distribution Date
following the Closing Date, a Trigger Event is in
effect.
Indemnified Persons
: The Trustee, the Servicer
(including any successor to the Servicer), 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.
Index : As of any Adjustment Date, the index
applicable to the determination of the Mortgage Rate on each
Mortgage Loan which will generally be based on One-Month LIBOR,
Six-Month LIBOR or One-Year LIBOR.
Initial Certificate Principal
Balance : With respect to
any Certificate, the Certificate Principal Balance of such
Certificate or any predecessor Certificate on the Closing
Date.
Initial Certification
: The certification of the Custodian
in the form attached hereto as Exhibit C-1.
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 other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses
: Expenses covered by any Insurance
Policy with respect to the Mortgage Loans.
Interest Determination
Date : Shall mean the
second LIBOR Business Day preceding the commencement of each
Accrual Period.
Interest Remittance
Amount : With respect to
any Distribution Date, (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 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 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
Majority Class X Certificateholder pursuant to Section 10.01
to the extent remitted by the Servicer to the Distribution Account
pursuant to this Agreement, minus (ii) all amounts relating to
interest required to be reimbursed pursuant to Sections 4.02,
4.04, 4.06, 4.07 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.
Interim Certification
: The certification of the Custodian
in the form attached hereto as Exhibit C-2.
Latest Possible Maturity
Date : The second
Distribution Date following the final scheduled maturity date of
the Mortgage Loan in the Trust Fund having the latest scheduled
maturity date as of the Cut-off Date. For purposes of the Treasury
Regulations under Code Section 860A through 860G, the latest
possible maturity date of each regular interest issued by REMIC I
and REMIC II shall be the Latest Possible Maturity Date.
LIBOR Business Day
: Shall mean a day on which banks
are open for dealing in foreign currency and exchange in
London.
LIBOR Determination
Date : The second LIBOR
Business Day before the first day of the related Accrual
Period.
Liquidated Loan
: With respect to any Distribution
Date, a defaulted Mortgage Loan that has been liquidated through
deed-in-lieu of foreclosure, foreclosure sale, trustee’s sale
or other realization as provided by applicable law governing the
real property subject to the related Mortgage and any security
agreements and as to which the Servicer has certified in the
related Prepayment Period 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, Loan Group
II, Loan Group III or Loan Group IV. “Loan Group I”
refers to the Group I Mortgage Loans, “Loan Group II”
refers to the Group II Mortgage Loans, “Loan Group III”
refers to the Group III Mortgage Loans and “Loan Group
IV” refers to the Group IV Mortgage Loans.
Loan-to-Value Ratio
: The fraction, expressed as a
percentage, the numerator of which is the original principal
balance of the Mortgage Loan and the denominator of which is the
Appraised Value of the related Mortgaged Property.
Majority Class X
Certificateholder : The
Holder of a 50.01% or greater Percentage Interest in the Class X
Certificates.
Marker Rate
: With respect to the Offered
Certificates and any Distribution Date, a per annum rate equal to
two (2) times the weighted average of the Uncertificated REMIC I
Pass-Through Rates for REMIC I Regular Interest LTI-IA, REMIC I
Regular Interest LTI-IIA1, REMIC I Regular Interest LTI-IIA2, REMIC
I Regular Interest LTI-IIIA1, REMIC I Regular Interest LTI-IIIA2,
REMIC I Regular Interest LTI-IIIA3, REMIC I Regular Interest
LTI-IVA1, REMIC I Regular Interest LTI-IVA2, REMIC I Regular
Interest LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I Regular
Interest LTI-M3, REMIC I Regular Interest LTI-M4, REMIC I Regular
Interest LTI-M5 and REMIC I Regular Interest LTI-ZZ, with the per
annum rate on REMIC I Regular Interest LTI-IA subject to a cap
equal to the weighted average Net Mortgage Rate of the Group I
Mortgage Loans for the purpose of this calculation; with the per
annum rate on REMIC I Regular Interest LTI-IIA1 subject to a cap
equal to the weighted average Net Mortgage Rate of the Group II
Mortgage Loans 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 weighted average Net Mortgage Rate of the Group II
Mortgage Loans for the purpose of this calculation; with the per
annum rate on REMIC I Regular Interest LTI-IIIA1, REMIC I Regular
Interest LTI-IIIA2, REMIC I Regular Interest LTI-IIIA3, REMIC I
Regular Interest LTI-IVA1, REMIC I Regular Interest LTI-IVA2, REMIC
I Regular Interest LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I
Regular Interest LTI-M3, REMIC I Regular Interest LTI-M4 and REMIC
I Regular Interest LTI-M5 subject to a cap equal to the least of
(w) One-Month LIBOR plus the Certificate Margin for the
Corresponding Certificate, (x) the applicable Net Funds Cap for the
Corresponding Certificate, (y) the Maximum Interest Rate for the
Corresponding Certificate and (z) the applicable Cap Rate for the
Corresponding Certificate for the purpose of this calculation; and
with the per annum rate on REMIC I Regular Interest LTI-ZZ subject
to a cap of zero for the purpose of this calculation; provided,
however, that for this purpose, the calculation of the
Uncertificated REMIC I Pass-Through Rate and the related cap with
respect to each such REMIC I Regular Interest (other than REMIC I
Regular Interest LTI-IA, REMIC I Regular Interest LTI-IIA1, REMIC I
Regular Interest LTI-IIA2 and REMIC I Regular Interest
LTI-ZZ) shall be multiplied by a
fraction, the numerator of which is the actual number of days in
the Accrual Period and the denominator of which is thirty
(30).
Maximum Interest Rate
: With respect to any Distribution
Date, the related Accrual Period and the Group III Certificates and
the Group IV Certificates, an annual rate equal to the weighted
average of the Maximum Mortgage Interest Rates of the Mortgage
Loans in Loan Group III and Loan Group IV, respectively, minus the
weighted average expense fee rate of the Mortgage Loans in Loan
Group III and Loan Group IV, respectively. With respect to any
Distribution Date, the related Accrued Period and the Subordinate
Certificates, an annual rate equal to the weighted average of the
Maximum Mortgage Interest Rates of the Mortgage Loans minus the
weighted average expense fee rate of the Mortgage Loans. The
calculation of the Maximum Interest Rate will be based on a 360-day
year and the actual number of days elapsed during the related
Accrual Period.
Maximum Mortgage Interest
Rate : With respect to
each Mortgage Loan, the percentage set forth in the related
Mortgage Note as the maximum Mortgage Rate thereunder.
MERS : Mortgage Electronic Registration Systems,
Inc., a corporation organized and existing under the laws of the
State of Delaware, or any successor thereto.
MERS® System
: The system of recording transfers
of Mortgages electronically maintained by MERS.
MIN : The Mortgage Identification Number for
Mortgage Loans registered with MERS on the MERS®
System.
Minimum Mortgage Interest
Rate : With respect to
each Mortgage Loan, the percentage set forth in the related
Mortgage Note as the minimum Mortgage Rate thereunder.
MOM Loan : Any Mortgage Loan as to which MERS is acting
as the mortgagee of such Mortgage Loan, solely as nominee for the
originator of such Mortgage Loan and its successors and assigns, at
the origination thereof.
Monthly Excess
Cashflow : With respect
to any Distribution Date, means the sum of (a) the Monthly Excess
Interest, (b) the Overcollateralization Release Amount, if any, for
such Distribution Date, and (c) the Principal Remittance Amount
remaining following payments of the Principal Payment Amount to the
Senior Certificates and Subordinate Certificates.
Monthly Excess
Interest : With respect
to any Distribution Date, the excess of (x) the Interest Remittance
Amount for such Distribution Date over (y) the sum of Current
Interest and Carryforward Interest on the Senior Certificates and
Subordinate Certificates for such Distribution Date.
Monthly Statement
: The statement delivered to the
Certificateholders pursuant to Section 5.09.
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 documents listed in
Section 2.01 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 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 April 28, 2005, between
the Seller, as seller and the Depositor, as purchaser.
Mortgage Loan Schedule
: The list of Mortgage Loans (as
from time to time amended by the Servicer to reflect the deletion
of Deleted Mortgage Loans and the addition of Replacement Mortgage
Loans pursuant to the provisions of this Agreement) transferred to
the Trustee as part of the Trust Fund and from time to time subject
to this Agreement, the initial Mortgage Loan Schedule being
attached hereto as Exhibit B, setting forth the following
information with respect to each Mortgage Loan:
|
(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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|
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(iv)
|
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)
|
the Cut-off Date Principal
Balance;
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(viii)
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the original term;
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(ix)
|
the remaining term;
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(x)
|
the property type;
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(xi)
|
with respect to each MOM Loan, the
related MIN;
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(xii)
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the Servicer;
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(xiii)
|
a code indicating whether the
Mortgage Loan is subject to a Prepayment Charge, the term of such
Prepayment Charge and the amount of such Prepayment
Charge;
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(xiv)
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the first Adjustment
Date;
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(xvi)
|
the Maximum Mortgage Interest Rate
under the terms of the Mortgage Note;
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(xvii)
|
the Minimum Mortgage Interest Rate
under the terms of the Mortgage Note;
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(xviii)
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the Periodic Rate Cap;
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(xix)
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the first Adjustment Date
immediately following the Cut-off Date;
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(xx)
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the Index; and
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(xxi)
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the related Loan Group.
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Such schedule shall also set forth
the aggregate Cut-off Date Principal Balance for all of the
Mortgage Loans.
Mortgage Note
: The original executed note or
other evidence of indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage Rate
: The annual rate of interest borne
by a Mortgage Note which rate (A) as of any date of determination
until the first Adjustment Date following the Cut-off Date shall be
the rate set forth in the Loan Schedule as the Mortgage Rate in
effect immediately following the Cut-off Date and (B) as of any
date of determination thereafter shall be the rate as adjusted on
the most recent Adjustment Date equal to the sum, rounded to the
nearest 0.125% as provided in the Mortgage Note, of the Index, as
most recently available as of a date prior to the Adjustment Date
as set forth in the related Mortgage Note, plus the related Gross
Margin; provided that the Mortgage Rate on such Mortgage Loan on
any Adjustment Date shall never be more than the lesser of (i) the
sum of the Mortgage Rate in effect immediately prior to the
Adjustment Date plus the related Periodic Rate Cap, if any, and
(ii) the related Maximum Mortgage Interest Rate, and shall never be
less than the greater of (i) the Mortgage Rate in effect
immediately prior to the Adjustment Date less the Periodic Rate
Cap, if any, and (ii) the related Minimum Mortgage Interest Rate.
With respect to each Mortgage Loan that becomes an REO Property, as
of any date of determination, the annual rate determined in
accordance with the immediately preceding sentence as of the date
such Mortgage Loan became an REO Property.
Mortgaged Property
: The underlying property securing a
Mortgage Loan.
Mortgagor : The obligors on a Mortgage Note.
Net Funds Cap
: With respect to any Distribution
Date for the Group III Certificates, (a) a fraction expressed as a
percentage, the numerator of which is the product of (1) the
Optimal Interest Remittance Amount for Loan Group III and such
Distribution Date and (2) twelve (12), and the denominator of which
is the Aggregate Loan Group Balance for Loan Group III for the
immediately preceding Distribution Date, multiplied by (b) a
fraction, expressed as a percentage, the numerator of which is
thirty (30) and the denominator of which is the actual number of
days elapsed in the immediately preceding Accrual Period. For
federal income tax purposes, the
equivalent of the foregoing shall be
expressed as the weighted average of the Uncertificated REMIC I
Pass-Through Rate on REMIC I Regular Interest LTI-3GRP, weighted on
the basis of the Uncertificated Principal Balance of such REMIC I
Regular Interest. With respect to any Distribution Date and the
Group IV Certificates, (a) a fraction expressed as a percentage,
the numerator of which is the product of (1) the Optimal Interest
Remittance Amount for Loan Group IV for such Distribution Date and
(2) twelve (12), and the denominator of which is the Aggregate Loan
Group Balance for Loan Group IV for the immediately preceding
Distribution Date, multiplied by (b) a fraction, expressed as a
percentage, the numerator of which is thirty (30) and the
denominator of which is the actual number of days elapsed in the
immediately preceding Accrual Period. For federal income tax
purposes, the equivalent of the foregoing shall be expressed as the
weighted average of the Uncertificated REMIC I Pass-Through Rate on
REMIC I Regular Interest LTI-4GRP, weighted on the basis of the
Uncertificated Principal Balance of such REMIC I Regular Interest.
With respect to any Distribution Date and the Subordinate
Certificates, (a) a fraction expressed as a percentage, the
numerator of which is the product of (1) the Optimal Interest
Remittance Amount for such Distribution Date and (2) twelve (12),
and the denominator of which is the Aggregate Loan Group Balance of
Loan Group I, Loan Group II, Loan Group III and Loan Group IV for
the immediately preceding Distribution Date, weighted, in each
case, on the basis of the Aggregate Loan Group Balance of Loan
Group I, Loan Group II, Loan Group III and Loan Group IV for the
immediately preceding Distribution Date, less the Certificate
Principal Balance of the related Senior Certificates, multiplied by
(b) a fraction, expressed as a percentage, the numerator of which
is thirty (30) and the denominator of which is the actual number of
days elapsed in the immediately preceding Accrual Period. For
federal income tax purposes, the equivalent of the foregoing shall
be expressed as the weighted average of the Uncertificated REMIC I
Pass-Through Rates on REMIC I Regular Interest LTI-1SUB, REMIC I
Regular Interest LTI-2SUB, REMIC I Regular Interest LTI-3SUB and
REMIC I Regular Interest LTI-4SUB, in each case subject to a cap
and a floor equal to the weighted average Net Mortgage Rate of the
Group I Mortgage Loans, Group II Mortgage Loans, Group III Mortgage
Loans and Group IV Mortgage Loans, respectively, weighted in each
case on the basis of the Uncertificated Principal Balance of each
such REMIC I Regular Interest.
Net Interest
Shortfalls means Interest
Shortfalls net of payments by the Servicer in respect of
Compensating Interest.
Net Mortgage Rate
: As to each Mortgage Loan, and at
any time, the per annum rate equal to the related Mortgage Rate
less the sum of (i) the Servicing Fee Rate, (ii) the rate at which
the fee payable to the Credit Risk Manager is calculated and (iii)
the rate at which the fee payable to any provider of lender-paid
mortgage insurance is calculated, if applicable.
Non-Book-Entry
Certificate : Any
Certificate other than a Book-Entry Certificate.
Nonrecoverable Advance
: Any portion of an Advance or
Servicing Advance previously made or proposed to be made by the
Servicer pursuant to this Agreement or the 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 this Agreement, signed by a
Authorized Servicer Representative, as the case may be, and
delivered to the Depositor, the Seller and/or the Trustee, as the
case may be, as required by this Agreement.
One-Month LIBOR
: With respect to any Accrual Period
(other than the first Accrual Period), the rate determined by the
Trustee 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 Trustee), One-Month LIBOR for the applicable
Accrual Period will be the Reference Bank Rate. If no such
quotations can be obtained by the Trustee 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 Trustee
and the Trustee’s calculation of the rate of interest
applicable to the Publicly Offered Certificates (other than the
Group I Certificates and Group II 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 3.06000% per annum.
One-Year LIBOR:
The per annum rate equal to the
average of interbank offered rates for one-year U.S.
dollar-denominated deposits in the London market based on
quotations of major banks as published in The Wall Street Journal
and most recently available as of the time specified in the related
Mortgage Note
Opinion of Counsel
: A written opinion of counsel, who
may be counsel for the Seller, the Depositor or the Servicer,
reasonably acceptable to each addressee of such opinion; provided
that with respect to Section 2.05, 7.05 or 11.01, or the
interpretation or application of the REMIC Provisions, such counsel
must (i) in fact be independent of the Seller, Depositor and the
Servicer, (ii) not have any direct financial interest in the
Seller, Depositor or the Servicer or in any affiliate of either,
and (iii) not be connected with the Seller, Depositor or the
Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar
functions.
Optimal Interest Remittance
Amount : With respect to
any Distribution Date will be equal to the excess of (i) the
product of (1)(x) the weighted average Net Mortgage Rates of the
Mortgage Loans as of the first day of the related Due Period,
divided by (y) twelve (12) and (2) the Aggregate Loan Balance for
the immediately preceding Distribution Date over (ii) any expenses
that reduce the Interest Remittance Amount that did not arise as a
result of a default or delinquency of the Mortgage Loans or were
not taken into account in computing the expense fee
rate.
Optional Termination
: The termination of the Trust Fund
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 Majority Class X Certificateholder
(so long as it is not an affiliate of the Seller) 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 Trustee or delivered to the Trustee for
cancellation; and
(b)
Certificates in exchange
for which or in lieu of which other Certificates have been executed
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
Loan Balance for such Distribution Date over (b) the aggregate
Certificate Principal Balance of the Publicly Offered Certificates
on such Distribution Date (after taking into account the payment of
100% of the Principal Remittance Amount on such Distribution
Date).
Overcollateralization Deficiency
Amount : With respect to
any Distribution Date, the amount, if any, by which (x) the
Targeted Overcollateralization Amount for such Distribution Date
exceeds (y) the Overcollateralization Amount for such Distribution
Date, calculated for this purpose after giving effect to the
reduction on such Distribution Date of the aggregate Certificate
Principal Balance of the Publicly Offered Certificates resulting
from the payment of the Principal Remittance Amount on such
Distribution Date, but prior to allocation of any Applied Loss
Amount on such Distribution Date.
Overcollateralization Release
Amount : With respect to
any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the amount, if any, by
which (1) the Overcollateralization Amount for such date exceeds
(2) the Targeted Overcollateralization Amount for such Distribution
Date.
Ownership Interest
: As to any Certificate, any
ownership interest in such Certificate including any interest in
such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate
: The Class I-A, Class II-A-1, Class
II-A-2, Class III-A-1, Class III-A-2, Class III-A-3, Class IV-A-1,
Class IV-A-2, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5
and Class X Pass-Through Rate, as applicable.
Payahead : Any Scheduled Payment intended by the related
Mortgagor to be applied in a Due Period subsequent to the Due
Period in which such payment was received.
Percentage Interest
: With respect to any Certificate of
a specified Class, the Percentage Interest set forth on the face
thereof or the percentage obtained by dividing the Denomination of
such Certificate by the aggregate of the Denominations of all
Certificates of such Class. With respect to any Residual
Certificate, the undivided percentage ownership in such Class
evidenced by such Certificate, as set forth on the face of such
Certificate. The Residual Certificates are issuable in Percentage
Interests of 20% and integral multiples of 5% in excess
thereof.
Periodic Rate Cap
: With respect the Adjustment Date
for an Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note, which is the maximum amount by which the Mortgage
Rate for such Mortgage Loan may increase or decrease (without
regard to the Maximum Mortgage Interest Rate or the Minimum
Mortgage Interest Rate) on such Adjustment Date from the Mortgage
Rate in effect immediately prior to such Adjustment
Date.
Permitted Investments
: At any time, any one or more of
the following obligations and securities:
(i) direct
obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any
agency thereof, provided such obligations are unconditionally
backed by the full faith and credit of the United
States;
(ii) general
obligations of or obligations guaranteed by any state of the United
States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or such lower rating as will not
result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by each Rating Agency, as evidenced by
a signed writing delivered by each Rating Agency;
(iv) commercial
or finance company paper which is then receiving the highest
commercial or finance company paper rating of each Rating Agency,
or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each
Rating Agency, as evidenced by a signed writing delivered by each
Rating Agency;
(v) certificates
of deposit, demand or time deposits, or bankers’ acceptances
issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and
subject to supervision and examination by federal and/or state
banking authorities (including the Trustee 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 or an
affiliate thereof 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
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 Servicer and the Trustee on the Closing
Date. The Prepayment Charge Schedule shall set forth the following
information with respect to each Prepayment Charge:
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(i)
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the Mortgage Loan identifying
number;
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(ii)
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a code indicating the type of
Prepayment Charge;
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(iii)
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the date on which the first Monthly
Payment was due on the related Mortgage Loan;
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(iv)
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the term of the related Prepayment
Charge;
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(v)
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the original Stated Principal
Balance of the related Mortgage Loan; and
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(vi)
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the Stated Principal Balance of the
related Mortgage Loan as of the Cut-off Date.
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Prepayment Interest
Shortfall : With respect
to any Distribution Date, for each Mortgage Loan that was the
subject of a Principal Prepayment in full during the related
Prepayment Period, (other than a Principal Prepayment in full
resulting from the purchase of a Mortgage Loan pursuant to
Section 2.02, 2.03, 3.24 or 10.01 hereof), the amount, if any,
by which (i) one month’s interest at the applicable Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan
immediately prior to such prepayment exceeds (ii) the amount of
interest paid or collected in connection with such Principal
Prepayment less the sum of (a) the related Servicing Fee (b) the
Credit Risk Management Fee Rate and (c) the fee payable to any
provider of lender-paid mortgage insurance, if any.
Prepayment Period
: With respect to any Distribution
Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
Principal Payment
Amount: With respect to
each Distribution Date, the Principal Remittance Amount for such
date minus the Overcollateralization Release Amount, if any, for
such Distribution Date.
Principal Prepayment
: Any Mortgagor payment or other
recovery of (or proceeds with respect to) principal on a Mortgage
Loan (including loans purchased or repurchased under
Sections 2.02, 2.03, 3.24 and 10.01 hereof) that is received
in advance of its scheduled Due Date and is not accompanied by an
amount as to interest representing scheduled interest due on any
Due Date in any month or months subsequent to the month of
prepayment. Partial Principal Prepayments shall be applied by the
Servicer in accordance with the terms of the related Mortgage
Note.
Principal Remittance
Amount : With respect to
any Distribution Date, (i) the sum, without duplication, of (a) the
principal portion of all Scheduled Payments on the Mortgage Loans
due during the related Due Period whether or not received on or
prior to the related Determination Date, (b) the principal portion
of all unscheduled collections (other than Payaheads) including
Insurance Proceeds, Condemnation Proceeds, Subsequent Recoveries
and all full and partial Principal Prepayments exclusive of
prepayment charges or penalties collected during the related
Prepayment Period, to the extent applied as recoveries of principal
on the Mortgage Loans, (c) the Stated Principal Balance of each
Mortgage Loan that was repurchased by the Seller during the related
Prepayment Period pursuant to Sections 2.02, 2.03 and 3.24,
(d) the aggregate of all Substitution Adjustment Amounts received
during the related Prepayment Period for the related Determination
Date in connection with the substitution of Mortgage Loans pursuant
to
Section 2.03(b), (e) amounts in
respect of principal on the Mortgage Loans paid by the Majority
Class X Certificateholder pursuant to Section 10.01, (f) all
Liquidation Proceeds and Subsequent Recoveries with respect to the
Mortgage Loans collected during the related Prepayment Period (to
the extent such Liquidation Proceeds and Subsequent Recoveries
relate to principal), in each case to the extent remitted by the
Servicer to the Distribution Account pursuant to this Agreement and
(g) the principal portion of Payaheads previously received of the
Mortgage Loans and intended for application in the related Due
Period minus (ii) all amounts required to be reimbursed pursuant to
Sections 4.02, 4.05, 4.07, 5.10 and 9.05 or as otherwise set
forth in this Agreement.
Private Certificate
: Each of the Class X, Class P
and Class R Certificates.
Prospectus Supplement
: The Prospectus Supplement dated
April 25, 2005 relating to the offering of the Publicly Offered
Certificates.
Publicly Offered
Certificates : Any
Certificates other than the Private Certificates.
PUD : A planned unit development.
Purchase Price
: With respect to any Mortgage Loan
required to be repurchased by the Seller pursuant to
Section 2.02, 2.03 or 3.24 hereof and as confirmed by an
Officer’s Certificate from the Seller to the Trustee, an
amount equal to the sum of (i) 100% of the outstanding principal
balance of the Mortgage Loan as of the date of such purchase plus,
(ii) 30 days accrued interest thereon at the applicable Net
Mortgage Rate, plus any portion of the Servicing Fee, Servicing
Advances and Advances payable to the Servicer 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 this Agreement. To the extent the
Servicer receives Subsequent Recoveries and respect to any Mortgage
Loan, the amount of the
Realized Loss with respect to that
Mortgage Loan will be reduced to the extent that Subsequent
Recoveries are applied to reduce the Certificate Principal Balance
of any Class of Certificates on any Distribution Date.
With respect to any REO Property as
to which a Final Recovery Determination has been made, an amount
(not less than zero) equal to (i) the Stated Principal Balance of
the related Mortgage Loan as of the date of acquisition of such REO
Property on behalf of REMIC I, plus (ii) accrued interest from the
Due Date as to which interest was last paid by the Mortgagor in
respect of the related Mortgage Loan through the end of the
calendar month immediately preceding the calendar month in which
such REO Property was acquired, calculated in the case of each
calendar month during such period (A) at an annual rate equal to
the annual rate at which interest was then accruing on the related
Mortgage Loan and (B) on a principal amount equal to the Stated
Principal Balance of the related Mortgage Loan as of the close of
business on the Distribution Date during such calendar month, minus
(iii) the aggregate of all unreimbursed Advances and Servicing
Advances.
With respect to each Mortgage Loan
which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient
Valuation.
With respect to each Mortgage Loan
which has become the subject of a Debt Service Reduction, the
portion, if any, of the reduction in each affected Monthly Payment
attributable to a reduction in the Mortgage Rate imposed by a court
of competent jurisdiction. Each such Realized Loss shall be deemed
to have been incurred on the Due Date for each affected Monthly
Payment.
In addition, to the extent the
Servicer receives Subsequent Recoveries with respect to any
Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such Subsequent
Recoveries are applied to reduce the Certificate Principal Balance
of any Class of Certificates on any Distribution Date.
Record Date
: With respect to the Group I
Certificates and Group II Certificates and any Distribution Date,
the close of business on the last Business Day of the month
preceding the month in which such Distribution Date occurs. With
respect to the Group III, Group IV and Subordinate Certificates and
any Distribution Date, so long as the Group III, Group IV and
Subordinate Certificates are Book-Entry Certificates, the Business
Day preceding such Distribution Date, and otherwise, the close of
business on the last Business Day of the month preceding the month
in which such Distribution Date occurs.
Reference Banks
: Shall mean leading banks selected
by the Trustee 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 Trustee and (iii) which are not controlling, controlled
by, or under common control with, the Depositor, the Seller or the
Servicer.
Reference Bank Rate
: With respect to any Accrual Period
shall mean the arithmetic mean, rounded upwards, if necessary, to
the nearest whole multiple of 0.03125%, of the offered
rates for United States dollar
deposits for one month that are quoted by the Reference Banks as of
11:00 a.m., New York City time, on the related Interest
Determination Date to prime banks in the London interbank market
for a period of one month in an amount approximately equal to the
aggregate Certificate Principal Balance of the Publicly Offered
Certificates (other than the Group I 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 Trustee, 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 Publicly Offered Certificates
(other than the Group I Certificates and Group II
Certificates) for such Accrual Period.
Regular Certificate
: Any Certificate other than a
Residual Certificate.
Relief Act
: The Servicemembers Civil Relief
Act of 2003, as amended from time to time.
REMIC : A “real estate mortgage investment
conduit” within the meaning of Section 860D of the
Code.
REMIC I : The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder, with respect to which a REMIC election is
to be made, consisting of (i) the Mortgage Loans and all interest
accruing and principal due with respect thereto after the Cut-off
Date to the extent not applied in computing the Cut-off Date
Principal Balance thereof and all related Prepayment Charges; (ii)
the related Mortgage Files, (iii) the Custodial Account (other than
any amounts representing any Servicer Prepayment Charge Payment
Amount), the Distribution Account, the Class P Certificate Account
and such assets that are deposited therein from time to time,
together with any and all income, proceeds and payments with
respect thereto; (iv) property that secured a Mortgage Loan and has
been acquired by foreclosure, deed in lieu of foreclosure or
otherwise; (v) the mortgagee’s rights under the Insurance
Policies with respect to the Mortgage Loans; (vi) the rights under
the Mortgage Loan Purchase Agreement, and (vii) all proceeds of the
foregoing, including proceeds of conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid
property. Notwithstanding the foregoing, however, REMIC I
specifically excludes (i) all payments and other collections of
principal and interest due on the Mortgage Loans on or before the
Cut-off Date, (ii) all Prepayment Charges payable in connection
with Principal Prepayments on the Mortgage Loans made before the
Cut-off Date, and (iii) the Basis Risk Shortfall Reserve
Fund.
REMIC I Interest Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to (a) the product of (i)
the aggregate Stated Principal Balance of the Mortgage Loans and
REO Properties then outstanding and (ii) the Uncertificated REMIC I
Pass-Through Rate for REMIC I Regular Interest LTI-AA minus the
Marker Rate, divided by (b) 12.
REMIC I Marker Allocation
Percentage : 0.50% of any
amount payable or loss attributable from the Mortgage Loans, which
shall be allocated to REMIC I Regular Interest LTI-AA, REMIC I
Regular Interest LTI-IA, REMIC I Regular Interest LTI-IIA1, REMIC I
Regular Interest LTI-IIA2, REMIC I Regular Interest LTI-IIIA1,
REMIC I Regular Interest LTI-
IIIA2, REMIC I Regular Interest
LTI-IIIA3, REMIC I Regular Interest LTI-IVA1, REMIC I Regular
Interest LTI-IVA2, REMIC I Regular Interest LTI-M1, REMIC I Regular
Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I Regular
Interest LTI-M4, REMIC I Regular Interest LTI-M5 and REMIC I
Regular Interest LTI-ZZ.
REMIC I Overcollateralization
Amount : With respect to
any date of determination, (i) 0.50% of the aggregate
Uncertificated Principal Balances of the REMIC I Regular Interests
minus (ii) the aggregate of the Uncertificated Principal Balances
of REMIC I Regular Interest LTI-IA, REMIC I Regular Interest
LTI-IIA1, REMIC I Regular Interest LTI-IIA2, REMIC I Regular
Interest LTI-IIIA1, REMIC I Regular Interest LTI-IIIA2, REMIC I
Regular Interest LTI-IIIA3, REMIC I Regular Interest LTI-IVA1,
REMIC I Regular Interest LTI-IVA2, REMIC I Regular Interest LTI-M1,
REMIC I Regular Interest LTI-M2, REMIC I Regular Interest LTI-M3,
REMIC I Regular Interest LTI-M4 and REMIC I Regular Interest
LTI-M5, in each case as of such date of determination.
REMIC I Principal Loss Allocation
Amount : With respect to
any Distribution Date, an amount equal to (a) the product of (i)
50% of the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties then outstanding and (ii) 1 minus a fraction,
the numerator of which is two times the aggregate of the
Uncertificated Principal Balances of REMIC I Regular Interest
LTI-IA, REMIC I Regular Interest LTI-IIA1, REMIC I Regular Interest
LTI-IIA2, REMIC I Regular Interest LTI-IIIA1, REMIC I Regular
Interest LTI-IIIA2, REMIC I Regular Interest LTI-IIIA3, REMIC I
Regular Interest LTI-IVA1, REMIC I Regular Interest LTI-IVA2, REMIC
I Regular Interest LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I
Regular Interest LTI-M3, REMIC I Regular Interest LTI-M4 and REMIC
I Regular Interest LTI-M5 and the denominator of which is the
aggregate of the Uncertificated Principal Balances of REMIC I
Regular Interest LTI-IA, REMIC I Regular Interest LTI-IIA1, REMIC I
Regular Interest LTI-IIA2, REMIC I Regular Interest LTI-IIIA1,
REMIC I Regular Interest LTI-IIIA2, REMIC I Regular Interest
LTI-IIIA3, REMIC I Regular Interest LTI-IVA1, REMIC I Regular
Interest LTI-IVA2, REMIC I Regular Interest LTI-M1, REMIC I Regular
Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I Regular
Interest LTI-M4, REMIC I Regular Interest LTI-M5 and REMIC I
Regular Interest LTI-ZZ.
REMIC I Regular
Interests : REMIC I
Regular Interest LTI-AA, REMIC I Regular Interest LTI-IA, REMIC I
Regular Interest LTI-IIA1, REMIC I Regular Interest LTI-IIA2, REMIC
I Regular Interest LTI-IIIA1, REMIC I Regular Interest LTI-IIIA2,
REMIC I Regular Interest LTI-IIIA3, REMIC I Regular Interest
LTI-IVA1, REMIC I Regular Interest LTI-IVA2, REMIC I Regular
Interest LTI-M1, REMIC I Regular Interest LTI-M2, REMIC I Regular
Interest LTI-M3, REMIC I Regular Interest LTI-M4, REMIC I Regular
Interest LTI-M5, REMIC I Regular Interest LTI-ZZ, REMIC I Regular
Interest LTI-P, REMIC I Regular Interest LT1-1SUB, REMIC I Regular
Interest LTI-1GRP, REMIC I Regular Interest LT1-2SUB, REMIC I
Regular Interest LTI-2GRP, REMIC I Regular Interest LT1-3SUB, REMIC
I Regular Interest LTI-3GRP, REMIC I Regular Interest LT1-4SUB,
REMIC I Regular Interest LTI-4GRP and REMIC I Regular Interest
LT1-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-IIA1: One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IIA1 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IIA2: One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IIA2 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IIIA1: One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IIIA1 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IIIA2 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IIIA2 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IIIA3 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-IIIA3 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-IVA1 : 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-IVA1 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-IVA2 : 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-IVA2 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-M1 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-M1 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-M2 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-M2 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-M3 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-M3 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-M4 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-M4 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-M5 : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-M5 shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-1SUB : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in
REMIC
I. REMIC I Regular Interest LTI-1SUB
shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be
entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest
LTI-1GRP : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-1GRP shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-2SUB : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-2SUB shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-2GRP : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-2GRP shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-3SUB : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-3SUB shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-3GRP : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-3GRP shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-4SUB : 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-4SUB 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-4GRP : 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-4GRP shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-P : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-P shall be entitled to distributions
of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement
hereto.
REMIC I Regular Interest
LTI-XX : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-XX shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest
LTI-ZZ : One of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a Regular Interest in REMIC I.
REMIC I Regular Interest LTI-ZZ shall accrue interest at the
related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the Preliminary Statement hereto.
REMIC I Regular Interest LTI-ZZ
Maximum Interest Deferral Amount : With respect to any Distribution Date, the
excess of (i) accrued interest at the Uncertificated REMIC I
Pass-Through Rate applicable to REMIC I Regular Interest LTI-ZZ for
such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LTI-ZZ minus the
REMIC I Overcollateralization Amount, in each case for such
Distribution Date, over (ii) the Uncertificated Accrued Interest on
REMIC I Regular Interest LTI-IA, REMIC I Regular Interest LTI-IIA1,
REMIC I Regular Interest LTI-IIA2, REMIC I Regular Interest
LTI-IIIA1, REMIC I Regular Interest LTI-IIIA2, REMIC I Regular
Interest LTI-IIIA3, REMIC I Regular Interest LTI-IVA1, REMIC I
Regular Interest LTI-IVA2, REMIC I Regular Interest LTI-M1, REMIC I
Regular Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I
Regular Interest LTI-M4 and REMIC I Regular Interest LTI-M5 for
such Distribution Date, with the rate on each such REMIC I Regular
Interest subject to a cap equal to the related Pass-Through
Rate.
REMIC I Sub WAC Allocation
Percentage : 0.50% of any
amount payable or loss attributable from the Mortgage Loans, which
shall be allocated to REMIC I Regular Interest LTI-1SUB, REMIC I
Regular Interest LTI-1GRP, REMIC I Regular Interest LTI-2SUB, REMIC
I Regular Interest LTI-2GRP, REMIC I Regular Interest LTI-3SUB,
REMIC I Regular Interest LTI-3GRP, REMIC I Regular Interest
LTI-4SUB, REMIC I Regular Interest LTI-4GRP and REMIC I Regular
Interest LTI-XX.
REMIC I Subordinated Balance
Ratio : The ratio among
the Uncertificated Principal Balances of each REMIC I Regular
Interest ending with the designation “SUB,”, equal to
the ratio between, with respect to each such REMIC I Regular
Interest, the excess of (x) the aggregate Stated Principal Balance
of the Group I Mortgage Loans, Group II Mortgage Loans, Group III
Mortgage Loans or Group IV 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 18 th
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 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, (i) have a
Stated Principal Balance, after deduction of the principal portion
of the Scheduled Payment due in the month of substitution, not in
excess of, and not less than 90% of, the Stated Principal Balance
of the Deleted Mortgage Loan; (ii) have an adjustable Mortgage Rate
not less than or more than 1% per annum higher than the Mortgage
Rate of the Deleted Mortgage Loan; (iii) have the same or higher
credit quality characteristics than that of the Deleted Mortgage
Loan; (iv) have a Loan-to-Value Ratio no higher than that of the
Deleted Mortgage Loan; (v) have a remaining term to maturity no
greater than (and not more than one year less than) that of the
Deleted Mortgage Loan; (vi) be secured by a first lien on the
related Mortgaged Property; (vii) constitute the same occupancy
type as the Deleted Mortgage Loan or be owner occupied; (viii) have
a Maximum Mortgage Interest Rate not less than the Maximum Mortgage
Interest Rate on the Deleted Loan; (ix) have a Minimum
Mortgage Interest Rate not less than
the Minimum Mortgage Interest Rate of the Deleted Loan; (x) have a
Gross Margin equal to the Gross Margin of the Deleted Loan; (xi)
have a next Adjustment Date not more than two months later than the
next Adjustment Date on the Deleted Loan; and (xii) comply with
each representation and warranty set forth in the Mortgage Loan
Purchase Agreement.
Request for Release
: The Request for Release to be
submitted by the Seller or the Servicer to the Custodian
substantially in the form of Exhibit H. Each Request for Release
furnished to the Custodian by the Seller or the Servicer shall be
in duplicate and shall be executed by an officer of such Person or
a Authorized Servicer Representative (or, if furnished
electronically to the Custodian, shall be deemed to have been sent
and executed by an officer of such Person or a Authorized Servicer
Representative) of the Servicer.
Required Insurance
Policy : With respect to
any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Residual Certificates
: The Class R
Certificates.
Responsible Officer
: With respect to the Trustee, 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.
Rolling Three Month Delinquency
Rate : With respect to
any Distribution Date and the Mortgage Loans will be the fraction,
expressed as a percentage, equal to the average of the Delinquency
Rates for each of the three (or one and two, in the case of the
first and second Distribution Dates) immediately preceding
months.
S&P : Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc. or its successor in
interest.
Scheduled Payment
: The scheduled monthly payment on a
Mortgage Loan due on any Due Date allocable to principal and/or
interest on such Mortgage Loan.
Securities Act
: The Securities Act of 1933, as
amended.
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-1, Class
II-A-2, Class III-A-1, Class III-A-2, Class III-A-3, Class IV-A-1
and Class IV-A-2 Certificates.
Senior Enhancement
Percentage : With respect
to any Distribution Date will be the fraction, expressed as a
percentage, the numerator of which is the sum of the aggregate
Certificate Principal Balance of the Subordinate Certificates and
the Overcollateralization Amount, in each case after giving effect
to payments on such Distribution Date (assuming no
Trigger Event is in effect), and the
denominator of which is the Aggregate Loan Balance for such
Distribution Date.
Senior Principal Payment
Amount : With respect to
any Distribution Date on or after the Stepdown Date and as long as
a Trigger Event is not in effect with respect to such Distribution
Date, the amount, if any, by which (x) the Certificate Principal
Balances of the Senior Certificates, in each case, immediately
prior to such Distribution Date exceed (y) the lesser of (A) the
product of (i) approximately 77.60% and (ii) the Aggregate Loan
Balance for such Distribution Date and (B) the amount, if any, by
which (i) the Aggregate Loan Balance for such Distribution Date
exceeds (ii) 0.50% of the Aggregate Loan Balance as of the Cut-off
Date.
Servicer : GMAC Mortgage Corporation or any successor
thereto appointed hereunder in connection with the servicing and
administration of the Mortgage Loans.
Servicer’s
Assignee : As defined in
Section 5.01(b)(ii).
Servicer Default
: As defined in
Section 8.01.
Servicer Prepayment Charge
Payment Amount : The
amount payable by the Servicer in respect of any waived Prepayment
Charges pursuant to Section 3.01.
Servicing Advances
: All customary, reasonable and
necessary “out of pocket” costs and expenses (including
reasonable legal fees) incurred in the performance by the Servicer
of its servicing obligations hereunder, including, but not limited
to, the cost of (i) the preservation, restoration, inspection,
valuation and protection of a Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures, and
including any expenses incurred in relation to any such proceedings
that result from the Mortgage Loan being registered in the
MERS® System, (iii) the management and liquidation of any REO
Property (including, without limitation, realtor’s
commissions), (iv) compliance with any obligations under
Section 3.07 hereof to cause insurance to be maintained and
(v) payment of taxes.
Servicing Fee
: As to each Mortgage Loan and any
Distribution Date, an amount equal to 1/12th of the Servicing Fee
Rate multiplied by the Stated Principal Balance of such Mortgage
Loan as of the last day of the related Due Period or, in the event
of any payment of interest that accompanies a Principal Prepayment
in full during the related Due Period made by the Mortgagor
immediately prior to such prepayment, interest at the Servicing Fee
Rate on the same Stated Principal Balance of such Mortgage Loan
used to calculate the payment of interest on such Mortgage
Loan.
Servicing Fee Rate
: 0.25% per annum.
Six-Month LIBOR
: The per annum rate equal to the
average of interbank offered rates for Six-Month U.S.
dollar-denominated deposits in the London market based on
quotations of major banks as published in The Wall Street Journal
and most recently available as of the time specified in the related
Mortgage Note.
Startup Day
: The Startup Day for each REMIC
formed hereunder shall be the Closing Date.
Stated Principal
Balance : With respect to
any Mortgage Loan or related REO Property and any Distribution
Date, the Cut-off Date Principal Balance thereof minus the sum of
(i) the principal portion of the Scheduled Payments due with
respect to such Mortgage Loan during each Due Period ending prior
to such Distribution Date (and irrespective of any delinquency in
their payment), (ii) all Principal Prepayments with respect to such
Mortgage Loan received prior to or during the related Prepayment
Period, and all Liquidation Proceeds to the extent applied by the
Servicer as recoveries of principal in accordance with
Section 3.09 of this Agreement with respect to such Mortgage
Loan, that were received by the Servicer as of the close of
business on the last day of the Prepayment Period related to such
Distribution Date and (iii) any Realized Losses on such Mortgage
Loan incurred during the related Prepayment Period. The Stated
Principal Balance of a Liquidated Loan equals zero.
Stepdown Date
: The later to occur of (x) the
Distribution Date in May 2008 and (y) the first Distribution Date
on which the Senior Enhancement Percentage (calculated for this
purpose only after taking into account distributions of principal
on the Mortgage Loans, but prior to any distributions to the
holders of the Publicly Offered Certificates on such Distribution
Date) is greater than or equal to approximately 22.40%.
Subordinate
Certificates : The Class
M-1, Class M-2, Class M-3, Class M-4 and Class M-5
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).
Successor Servicer
: The Trustee or any successor to
the Servicer appointed pursuant to Section 8.02 after the
occurrence of a Servicer Default or upon the resignation of the
Servicer pursuant to this Agreement.
Targeted Overcollateralization
Amount : With respect to
any Distribution Date prior to the Stepdown Date, approximately
0.65% of the Aggregate Loan Balance as of the Cut-off Date; with
respect to any Distribution Date on or after the Stepdown Date and
with respect to which a Trigger Event is not in effect, the greater
of (a) 1.30% of the Aggregate Loan Balance for such Distribution
Date, or (b) 0.50% of the Aggregate Loan Balance as of the Cut-off
Date; with respect to any Distribution Date on or after the
Stepdown Date with respect to which a Trigger Event is in effect,
the Targeted Overcollateralization Amount for the last Distribution
Date on which a Trigger Event was not in effect. Notwithstanding
the foregoing, on and after any Distribution Date following the
reduction of the aggregate Certificate Principal Balance of the
Group I Certificates, the Group II Certificates, the Group III
Certificates, the Group IV
Certificates and the Subordinate
Certificates to zero, the Targeted Overcollateralization Amount
shall be zero.
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 Trustee, or any
successor thereto or assignee thereof shall serve as tax
administrator hereunder and as agent for the related Tax Matters
Person.
Termination Price
: The price, calculated as set forth
in Section 10.01, to be paid in connection with the purchase
of the Mortgage Loans pursuant to Section 10.01.
Transfer Affidavit
: As defined in
Section 6.02(c).
Transfer : Any direct or indirect transfer or sale of any
Ownership Interest in a Certificate.
Trigger Event
: With respect to any Distribution
Date, a Trigger Event is in effect if either (i) the Rolling Three
Month Delinquency Rate as of the last day of the related Due Period
equals or exceeds 27.00% of the Senior Enhancement Percentage for
such Distribution Date or (ii) the cumulative Realized Losses as a
percentage of the original Aggregate Loan Balance on the Closing
Date for such Distribution Date is greater than the percentage set
forth in the following table:
|
Range of Distribution
Dates
|
Cumulative Loss
Percentage
|
|
May 2008 – April
2009
|
1.10%
|
|
May 2009 – April
2010
|
1.55%
|
|
May 2010 – April
2011
|
2.05%
|
|
May 2011 and thereafter
|
2.40%
|
*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 Cap Contracts and the Basis Risk Shortfall Reserve
Fund.
Trustee : JPMorgan Chase Bank, N.A., a national banking
association, not in its individual capacity, but solely in its
capacity as trustee for the benefit of the Certificateholders under
this Agreement, and any successor thereto, and any corporation or
national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a
party and any successor trustee as may from time to time be serving
as successor trustee hereunder.
Uncertificated Accrued
Interest : With respect
to each Uncertificated REMIC Regular Interest on each Distribution
Date, an amount equal to one month’s interest at the related
Uncertificated Pass-Through Rate on the Uncertificated Principal
Balance of such REMIC Regular Interest. In each case,
Uncertificated Accrued Interest will be reduced by any Prepayment
Interest Shortfalls and shortfalls resulting from application of
the Relief Act (allocated to such REMIC Regular Interests as set
forth in Sections 1.02 and 5.07).
Uncertificated Principal
Balance : With respect to
each REMIC Regular Interest, the principal amount of such REMIC
Regular Interest outstanding as of any date of determination. As of
the Closing Date, the Uncertificated Principal Balance of each
REMIC Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated
Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC Regular Interest shall be reduced
by all distributions of principal made on such REMIC Regular
Interest on such Distribution Date pursuant to Section 5.07
and, if and to the extent necessary and appropriate, shall be
further reduced on such Distribution Date by Realized Losses as
provided in Section 5.07. The Uncertificated Principal Balance
of each REMIC Regular Interest shall never be less than
zero.
Uncertificated REMIC I
Pass-Through Rate : With
respect to REMIC I Regular Interest LTI-AA, REMIC I Regular
Interest LTI-IA, REMIC I Regular Interest LTI-IIA1, REMIC I Regular
Interest LTI-IIA2, REMIC I Regular Interest LTI-IIIA1, REMIC I
Regular Interest LTI-IIIA2, REMIC I Regular Interest LTI-IIIA3,
REMIC I Regular Interest LTI-IVA1, REMIC I Regular Interest
LTI-IVA2, REMIC I Regular Interest LTI-M1, REMIC I Regular Interest
LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I Regular Interest
LTI-M4, REMIC I Regular Interest LTI-M5, REMIC I Regular Interest
LTI-ZZ, REMIC I Regular Interest LT1-1SUB, REMIC I Regular Interest
LT1-2SUB, REMIC I Regular Interest LTI-3SUB, REMIC I Regular
Interest LTI-4SUB and REMIC I Regular Interest LT1-XX, the weighted
average Net Mortgage Rate of the Mortgage Loans. With respect to
REMIC I Regular Interest LTI-1GRP, the weighted average Net
Mortgage Rate of the Group I Mortgage Loans. With respect to REMIC
I Regular Interest LTI-2GRP, the weighted average Net Mortgage Rate
of the Group II Mortgage Loans. With respect to REMIC I Regular
Interest LTI-3GRP, the weighted average Net Mortgage Rate of the
Group III Mortgage Loans. With respect to REMIC I Regular Interest
LTI-4GRP, the weighted average Net Mortgage Rate of the Group IV
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.
|
Section 1.02
|
Allocation of Certain Interest
Shortfalls.
|
For purposes of calculating the
amount of the Interest Remittance Amount for any Distribution Date,
(1) the aggregate amount of any Net Interest Shortfalls in respect
of the Mortgage Loans for any Distribution Date shall reduce the
Interest Remittance Amount on a pro rata basis based on, and
to the extent of, one month’s interest at the then applicable
respective
Pass-Through Rate on the respective
Certificate Principal Balance of each class of Publicly Offered
Certificates and (2) the aggregate amount of any Realized Losses
allocated to the Class II-A-2, Class III-A-3, Class IV-A-2 and
Subordinate Certificates and Basis Risk Shortfalls allocated to the
Publicly Offered Certificates for any Distribution Date shall be
allocated to the Class X Certificates based on, and to the extent
of, one month’s interest at the then applicable respective
Pass-Through Rate on the Certificate Principal Balance thereof on
any Distribution Date.
For purposes of calculating the
amount of Uncertificated Accrued Interest for the REMIC I Regular
Interests for any Distribution Date:
The REMIC I Marker Allocation
Percentage of the aggregate amount of any Net Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated among REMIC I Regular Interest LTI-AA, REMIC I
Regular Interest LTI-IA, REMIC I Regular Interest LTI-IIA1, REMIC I
Regular Interest LTI-IIA2, REMIC I Regular Interest LTI-IIIA1,
REMIC I Regular Interest LTI-IIIA2, REMIC I Regular Interest
LTI-IIIA3, REMIC I Regular Interest LTI-IVA1, REMIC I Regular
Interest LTI-IVA2, REMIC I Regular Interest LTI-M1, REMIC I Regular
Interest LTI-M2, REMIC I Regular Interest LTI-M3, REMIC I Regular
Interest LTI-M4, REMIC I Regular Interest LTI-M5 and REMIC I
Regular Interest LTI-ZZ, pro rata based on, and to the
extent of, one month’s interest at the then applicable
respective Uncertificated REMIC I Pass-Through Rate on the
respective Uncertificated Principal Balance of each such REMIC I
Regular Interest; and
The REMIC I Sub WAC Allocation
Percentage of the aggregate amount of any Net Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated to Uncertificated Accrued Interest payable to
REMIC I Regular Interest LTI-1SUB, REMIC I Regular Interest
LTI-1GRP, REMIC I Regular Interest LTI-2SUB, REMIC I Regular
Interest LTI-2GRP, REMIC I Regular Interest LTI-3SUB, REMIC I
Regular Interest LTI-3GRP, REMIC I Regular Interest LTI-4SUB, REMIC
I Regular Interest LTI-4GRP and REMIC I Regular Interest LTI-XX,
pro rata based on, and to the extent of, one month’s
interest at the then applicable respective Uncertificated REMIC I
Pass-Through Rate on the respective Uncertificated Principal
Balance of each such REMIC I Regular Interest.
ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND
WARRANTIES
|
Section 2.01
|
Conveyance of Trust
Fund.
|
The Seller hereby sells, transfers,
assigns, sets over and otherwise conveys to the Depositor, without
recourse, all the right, title and interest of the Seller in and to
the assets in the Trust Fund.
The Seller has entered into this
Agreement in consideration for the purchase of the Mortgage Loans
by the Depositor and has agreed to take the actions specified
herein.
The Depositor, concurrently with the
execution and delivery hereof, hereby sells, transfers, assigns,
sets over and otherwise conveys to the Trustee for the use and
benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Trust
Fund.
In connection with such sale, the
Depositor has delivered to, and deposited with, the Trustee or the
Custodian, as its agent, the following documents or instruments
with respect to each Mortgage Loan so assigned: (i) the original
Mortgage Note, including any riders thereto, endorsed without
recourse to the order of “JPMorgan Chase Bank, N.A., as
Trustee for Certificateholders of Nomura Asset Acceptance
Corporation, Mortgage Pass-Through Certificates, Series
2005-AR2,” and showing to the extent available to the Seller
an unbroken chain of endorsements from the original payee thereof
to the Person endorsing it to the Trustee, (ii) the original
Mortgage and, if the related Mortgage Loan is a MOM Loan, noting
the presence of the MIN and language indicating that such Mortgage
Loan is a MOM Loan, which shall have been recorded (or if the
original is not available, a copy), with evidence of such recording
indicated thereon (or if clause (x) in the proviso below applies,
shall be in recordable form), (iii) unless the Mortgage Loan is a
MOM Loan, the assignment (either an original or a copy, which may
be in the form of a blanket assignment if permitted in the
jurisdiction in which the Mortgaged Property is located) to the
Trustee of the Mortgage with respect to each Mortgage Loan in the
name of “JPMorgan Chase Bank, N.A., as Trustee for
Certificateholders of Nomura Asset Acceptance Corporation, Mortgage
Pass-Through Certificates, Series 2005-AR2,” which shall have
been recorded (or if clause (x) in the proviso below applies, shall
be in recordable form), (iv) an original or a copy of all
intervening assignments of the Mortgage, if any, to the extent
available to the Seller, with evidence of recording thereon, (v)
the original policy of title insurance or mortgagee’s
certificate of title insurance or commitment or binder for title
insurance, if available, or a copy thereof, or, in the event that
such original title insurance policy is unavailable, a photocopy
thereof, or in lieu thereof, a current lien search on the related
Mortgaged Property and (vi) originals or copies of all available
assumption, modification or substitution agreements, if any;
provided, however, that in lieu of the foregoing, the Seller may
deliver the following documents, under the circumstances set forth
below: (x) if any Mortgage, assignment thereof to the Trustee or
intervening assignments thereof have been delivered or are being
delivered to recording offices for recording and have not been
returned in time to permit their delivery as specified above, the
Depositor may deliver a true copy thereof with a certification by
the Seller or the title company issuing the commitment for title
insurance, on the
face of such copy, substantially as
follows: “Certified to be a true and correct copy of the
original, which has been transmitted for recording” and (y)
in lieu of the Mortgage Notes relating to the Mortgage Loans
identified in the list set forth in Exhibit J, the Depositor may
deliver a lost note affidavit and indemnity and a copy of the
original note, if available; and provided, further, that in the
case of Mortgage Loans which have been prepaid in full after the
Cut-Off Date and prior to the Closing Date, the Depositor, in lieu
of delivering the above documents, may deliver to the Trustee a
certification of a Authorized Servicer Representative to such
effect and in such case shall deposit all amounts paid in respect
of such Mortgage Loans, in the Distribution Account on the Closing
Date. In the case of the documents referred to in clause (x)
related above, the Depositor shall deliver such documents to the
Trustee promptly after they are received. The Seller shall cause,
at its expense, the Mortgage and intervening assignments, if any,
and to the extent required in accordance with the foregoing, the
assignment of the Mortgage to the Trustee to be submitted for
recording promptly after the Closing Date; provided that the Seller
need not cause to be recorded any assignment (a) in any
jurisdiction under the laws of which, as evidenced by an Opinion of
Counsel delivered by the Seller to the Trustee and the Rating
Agencies, the recordation of such assignment is not necessary to
protect the Trustee’s interest in the related Mortgage Loan
or (b) if MERS is identified on the Mortgage or on a properly
recorded assignment of the Mortgage as mortgagee of record solely
as nominee for Seller and its successors and assigns. In the event
that the Seller or the Depositor gives written notice to the
Trustee that a court has recharacterized the sale of the Mortgage
Loans as a financing, the Seller shall submit or cause to be
submitted for recording as specified above or, should the Seller
fail to perform such obligations, the Trustee shall cause each such
previously unrecorded assignment to be submitted for recording as
specified above at the expense of the Trust pursuant to
Section 9.05. In the event a Mortgage File is released to the
Servicer as a result of such Person having completed a Request for
Release, the Trustee shall, if not so completed, complete the
assignment of the related Mortgage in the manner specified in
clause (iii) above.
In connection with the assignment of
any Mortgage Loan registered on the MERS® System, the Seller
further agrees that it will cause, at the Seller’s own
expense, within thirty (30) days after the Closing Date, the
MERS® System to indicate that such Mortgage Loans have been
assigned by the Seller to the Depositor and by the Depositor to the
Trustee in accordance with this Agreement for the benefit of the
related Certificateholders by including (or deleting, in the case
of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files (a) the code in the field which
identifies the specific Trustee and (b) the code in the field
“Pool Field” which identifies the series of the
Certificates issued in connection with such Mortgage Loans. The
Seller further agrees that it will not, and will not permit any
Servicer to alter the codes referenced in this paragraph with
respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance
with the terms of this
Agreement.
|
Section 2.02
|
Acceptance of the Mortgage
Loans.
|
(a) Based
on the Initial Certification received by it from the Custodian, the
Trustee acknowledges receipt of, subject to the further review and
exceptions reported by the Custodian pursuant to the procedures
described below, the documents (or certified copies thereof)
delivered to the Trustee or the Custodian on its behalf pursuant to
Section 2.01 and declares that it holds and will continue to
hold directly or through a custodian those documents and any
amendments,
replacements or supplements thereto
and all other assets of the Trust Fund delivered to it in trust for
the use and benefit of all present and future Holders of the
Certificates. On the Closing Date, the Custodian on the
Trustee’s behalf will deliver an Initial Certification in the
form annexed hereto as Exhibit C-1, confirming whether or not it
has received the Mortgage File for each Mortgage Loan, but without
review of such Mortgage File, except to the extent necessary to
confirm whether such Mortgage File contains the original Mortgage
Note or a lost note affidavit and indemnity in lieu thereof. No
later than ninety (90) days after the Closing Date, the Custodian
on the Trustee’s behalf shall, for the benefit of the
Certificateholders, review each Mortgage File delivered to it and
execute and deliver to the Seller and the Trustee an Interim
Certification substantially in the form annexed hereto as Exhibit
C-2. In conducting such review, the Custodian on the
Trustee’s behalf will ascertain whether all required
documents have been executed and received and whether those
documents relate, determined on the basis of the Mortgagor name,
original principal balance and loan number, to the Mortgage Loans
identified in Exhibit B to this Agreement, as supplemented
(provided, however, that with respect to those documents described
in subclauses (iv) and (vi) of Section 2.01, such obligations
shall extend only to documents actually delivered pursuant to such
subclauses). In performing any such review, the Custodian may
conclusively rely on the purported due execution and genuineness of
any such document and on the purported genuineness of any signature
thereon. If the 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, determined
on the basis of the Mortgagor’s name, the original principal
balance and the Mortgage Loan number, or to appear to be defective
on its face, the Custodian shall include such information in the
exception report attached to the Interim Certification. 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 Trustee 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 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 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.
(b) 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 Certification substantially in the form annexed
hereto as Exhibit C-3. In conducting such review, the Custodian on
the Trustee’s behalf 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 Section 2.01 (provided, however, that
with respect to those documents described in subclauses (iv) and
(vi) of Section 2.01, such obligations shall extend only to
documents actually delivered
pursuant to such subclauses). If the
Custodian finds any document with respect to a Mortgage Loan has
not been received, or to be unrelated, determined on the basis of
the Mortgagor name, original principal balance and loan number, to
the Mortgage Loans identified in Exhibit B or to appear defective
on its face, the Custodian shall note such defect in the exception
report attached to the Final Certification and the Trustee shall
promptly notify the Seller. 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.
(c) In
the event that a Mortgage Loan is purchased by the Seller in
accordance with subsections 2.02(a) or (b) above or Section 2.03,
the Seller shall remit the applicable Purchase Price to the
Servicer for deposit in the Custodial Account and shall provide
written notice to the Trustee 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 Trustee on the
Remittance Date occurring in the month immediately following the
month in which the Purchase Price was deposited in the Custodial
Account. In addition, upon such deposit of the Purchase Price, the
delivery of an Officer's Certificate by the Servicer to the Trustee
certifying that the Purchase Price has been deposited in the
Custodial Account, the delivery of an Opinion of Counsel if
required by Section 2.05 and the receipt of a Request for Release
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 Custodial Account was made. The Trustee shall
promptly notify the Rating Agencies of such repurchase. The
obligation of the Seller to cure, repurchase or substitute for any
Mortgage Loan as to which a defect in a constituent document exists
shall be the sole remedies respecting such defect available to the
Certificateholders or to the Trustee on their behalf. The Seller
shall promptly reimburse the Trustee for any expenses incurred by
the Trustee in respect of enforcing the remedies for such
breach.
(d) The
Seller shall deliver to the Trustee, and Trustee agrees to accept
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 subsections 2.02(a) and
2.02(b), provided, that the Closing Date referred to therein shall
instead be the date of delivery of the Mortgage File with respect
to each Replacement Mortgage Loan.
|
Section 2.03
|
Representations, Warranties and
Covenants of the Servicer and the Seller.
|
(a) The
Servicer hereby represents and warrants to, and covenants with, the
Seller, the Depositor and the Trustee as follows, as of the Closing
Date:
(i) It
is duly organized and is validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and is duly
authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by it in any state
in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in
any event, is in compliance with the doing business laws of any
such state, to the extent necessary to ensure its ability to
service the Mortgage Loans in accordance with the terms of this
Agreement and to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(ii) It
has the full corporate power and authority to service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Agreement and has
duly authorized by all necessary corporate action on its part the
execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes its legal, valid
and binding obligation, enforceable against it in accordance with
its terms, except that (a) the enforceability hereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors’ rights generally and (b)
the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought and further subject to public policy with respect to
indemnity and contribution under applicable securities
law.
(iii) The
execution and delivery of this Agreement by it, the servicing of
the Mortgage Loans by it under this Agreement, the consummation of
any other of the transactions contemplated by this Agreement, and
the fulfillment of or compliance with the terms hereof are in its
ordinary course of business and will not (A) result in a material
breach of any term or provision of its charter or by-laws or (B)
materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms
of any other material agreement or instrument to which it is a
party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to it of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it; and it is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may
materially impair its ability to perform or meet any of its
obligations under this Agreement.
(iv) It
is an approved servicer of conventional mortgage loans for Fannie
Mae or Freddie Mac and is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211
of the National Housing Act.
(v) No
litigation is pending or, to the best of its knowledge, threatened
in writing, against it that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its
ability to service the Mortgage Loans or to perform any of its
other obligations under this Agreement in accordance with the terms
hereof.
(vi) No
consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery
and performance of, or compliance with, this Agreement or the
consummation of the transactions contemplated hereby, or if any
such consent, approval, authorization or order is required, it has
obtained the same.
(vii) The
Servicer has accurately and fully reported, and will continue to
accurately and fully report its borrower credit files to each of
the credit repositories in a timely manner materially in accordance
with the Fair Credit Reporting Act and its implementing
legislation.
(viii) The
Servicer is a member of MERS in good standing, and will comply in
all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are
registered with MERS.
(ix) The
Servicer will not waive any Prepayment Charge with respect to a
Mortgage Loan unless it is waived in accordance with the standard
set forth in Section 3.01.
If the covenant of the Servicer set
forth in Section 2.03(a)(ix) above is breached by the
Servicer, the Servicer will pay the amount of such waived
Prepayment Charge, for the benefit of the Holders of the Class P
Certificates by depositing such amount into the Custodial Account
within 90 days of the earlier of discovery by the Servicer or
receipt of notice by the Servicer of such breach. Notwithstanding
the foregoing, or anything to the contrary contained in this
Agreement, the Servicer shall have no liability for a waiver of any
Prepayment Charge in the event that the Servicer’s
determination to make such a waiver was made by the Servicer in
reliance on information properly received by the Servicer from any
Person in accordance with the terms of this Agreement.
(b) The
Seller hereby represents and warrants to and covenants with, the
Depositor, the Servicer and the Trustee as follows, as of the
Closing Date:
(i) The
Seller is duly organized, validly existing and in good standing
under the laws of the State of Delaware and is duly authorized and
qualified to transact any and all business contemplated by this
Agreement to be conducted by the Seller in any state in which a
Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is
in compliance with the doing business laws of any such state, to
the extent necessary to ensure its ability to enforce each Mortgage
Loan, to sell the Mortgage Loans in accordance with the terms of
this Agreement and to perform any of its other obligations under
this Agreement in accordance with the terms hereof.
(ii) The
Seller has the full corporate power and authority to sell each
Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by this Agreement
and has duly authorized by all necessary corporate action on the
part of the Seller the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization,
execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except
that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws
relating to creditors’ rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought
and further subject to public policy with respect to indemnity and
contribution under applicable securities law.
(iii) The
execution and delivery of this Agreement by the Seller, the sale of
the Mortgage Loans by the Seller under this Agreement, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms
hereof are in the ordinary course of business of the Seller and
will not (A) result in a material breach of any term or provision
of the charter or by-laws of the Seller or (B) materially conflict
with, result in a material breach, violation or acceleration of, or
result in a material default under, the terms of any other material
agreement or instrument to which the Seller is a party or by which
it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to the Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Seller; and the Seller is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may
materially impair the Seller’s ability to perform or meet any
of its obligations under this Agreement.
(iv) The
Seller is an approved seller of conventional mortgage loans for
Fannie Mae or Freddie Mac and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to
Sections 203 and 211 of the National Housing Act.
(v) No
litigation is pending or, to the best of the Seller’s
knowledge, threatened, against the Seller that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Seller to sell the Mortgage Loans
or to perform any of its other obligations under this Agreement in
accordance with the terms hereof.
(vi) No
consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Seller of, or compliance by the Seller with,
this Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is
required, the Seller has obtained the same.
(vii) The
representations and warranties set forth in Section 8 of the
Mortgage Loan Purchase Agreement are true and correct as of the
Closing Date.
(viii) No
Mortgage Loan is subject to the Home Ownership and Equity
Protection Act of 1994 or any comparable law and no Mortgage Loan
is classified and/or defined as a “high cost”,
“covered”, “high risk home” or
“predatory” loan under any other state, federal or
local law or regulation or ordinance (or a similarly classified
loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or
fees).
(ix) No
loan is a High Cost Loan or Covered Loan, as applicable (as such
terms are defined in Appendix E of the Standard & Poor's
Glossary For File Format For LEVELS® Version 5.6 Revised
(attached hereto as Exhibit N.) and no Mortgage Loan originated on
or after October 1, 2002 through March 6, 2003 is governed by the
Georgia Fair Lending Act.
(x) Any
and all requirements of any federal, state or local law including,
without limitation, usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity,
fair housing, predatory, abusive lending or disclosure laws
applicable to the origination and servicing of the Mortgage Loans
have been complied with in all material respects.
(c) Upon
discovery by any of the parties hereto of a breach of a
representation or warranty set forth in Section 2.03(b)(viii),
(ix) and (x) and Section 8 of the Mortgage Loan Purchase
Agreement that materially and adversely affects the interests of
the Certificateholders in any Mortgage Loan, the party discovering
such breach shall give prompt written notice thereof to the other
parties. The Seller hereby covenants with respect to the
representations and warranties set forth in
Section 2.03(b)(viii), (ix) and (x) and Section 8 of the
Mortgage Loan Purchase Agreement, that within 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 Trustee of a Request for Release.
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.
With respect to any Replacement
Mortgage Loan or Loans, the Seller shall deliver to the Trustee for
the benefit of the related Certificateholders such documents and
agreements as are required by Section 2.01. 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 Trustee of a Request
for Release for such Mortgage Loan, the Trustee shall release to
the Seller the Mortgage File relating to such Deleted Mortgage Loan
and held for the benefit of the related Certificateholders and
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. The Trustee shall not 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 Trustee will determine the amount (if any) by
which the aggregate principal balance of all the Replacement
Mortgage Loans as of the date of substitution is less than the
Stated Principal Balance (after application of the principal
portion of the Scheduled Payment due in the month of substitution)
of such Deleted Mortgage Loan. An amount equal to the aggregate of
such deficiencies, described in the preceding sentence for any
Distribution Date (such amount, the “Substitution Adjustment
Amount”) shall be remitted to the Servicer for deposit in the
Custodial Account, by the Seller delivering such Replacement
Mortgage Loan on or before the Determination Date for the
Distribution Date relating to the Prepayment Period during which
the related Mortgage Loan was required to be purchased or replaced
hereunder.
In the event that the Seller shall
be required to repurchase a Mortgage Loan, the Purchase Price
therefor shall be remitted to the Servicer for deposit in the
Custodial Account, on or before the Determination Date immediately
following the date on which the Seller was required to repurchase
such Mortgage Loan. The Purchase Price shall be remitted by the
Servicer to the Trustee on the Remittance Date occurring in the
month immediately following the month in
which the Purchase Price was
deposited in the Custodial Account. In addition, upon such deposit
of the Purchase Price, the delivery of an Officer’s
Certificate by the Servicer to the Trustee certifying that the
Purchase Price has been deposited in the Custodial Account, the
delivery of an Opinion of Counsel if required by Section 2.05
and the receipt of a Request for Release, the Trustee shall release
the related Mortgage File held for the benefit of the related
Certificateholders to the Seller, and the Trustee shall execute and
deliver at such Person’s direction the related instruments of
transfer or assignment prepared by the Seller, in each case without
recourse, as shall be necessary to transfer title from the Trustee
for the benefit of the Certificateholders and transfer the
Trustee’s interest to the Seller to any Mortgage Loan
purchased pursuant to this Section 2.03. It is understood and
agreed that the obligation under this Agreement of the Seller to
cure, repurchase or replace any Mortgage Loan as to which a breach
has occurred 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.
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Section 2.04
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Representations and Warranties of
the Depositor.
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The Depositor hereby represents and
warrants to, and covenants, with the 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 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.
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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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(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 REMIC 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 the 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
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Issuance of the REMIC I Regular
Interests and the Class R Certificates.
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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.
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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.
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Section 2.08
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Issuance of Residual
Certificates.
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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 Trustee has executed, authenticated and delivered to
or upon the order of the Depositor, the Class R Certificates in
authorized denominations.
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Section 2.09
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Establishment of
Trust.
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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-AR2” and does hereby
appoint JPMorgan Chase Bank, N.A., as Trustee in accordance with
the provisions of this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE
MORTGAGE LOANS
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Section 3.01
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The Servicer to Act as
Servicer.
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The Servicer shall service and
administer the Mortgage Loans on behalf of the Trust and in the
best interest of and for the benefit of the Certificateholders (as
determined by the Servicer in its reasonable judgment) in
accordance with the terms of this Agreement and the Mortgage Loans
and to the extent consistent with such terms and in accordance with
and exercising the same care in performing those practices that the
Servicer customarily employs and exercises in servicing and
administering mortgage loans for its own account (including,
compliance with all applicable federal, state and local
laws).
To the extent consistent with the
foregoing, the Servicer shall seek the timely and complete recovery
of principal and interest on the Mortgage Notes related to the
Mortgage Loans and shall waive a Prepayment Charge only under the
following circumstances: (i) such waiver is standard and customary
in servicing similar mortgage loans and (ii) either (A) such waiver
is related to a default or reasonably foreseeable default and
would, in the reasonable judgment of the Servicer, maximize
recovery of total proceeds taking into account the value of such
Prepayment Charge and the related Mortgage Loan and, if such waiver
is made in connection with a refinancing of the related Mortgage
Loan, such refinancing is related to a default or a reasonably
foreseeable default or (B) such waiver is made in connection with a
refinancing of the related Mortgage Loan unrelated to a default or
a reasonably foreseeable default where (x) the related Mortgagor
has stated to the Servicer an intention to refinance the related
Mortgage Loan and (y) the Servicer has concluded in its reasonable
judgment that the waiver of such Prepayment Charge would induce
such Mortgagor to refinance with the Servicer or (iii) the Servicer
reasonably believes such Prepayment Charge is unenforceable in
accordance with applicable law or the collection of such related
Prepayment Charge would otherwise violate applicable law. If a
Prepayment Charge is waived as permitted by meeting both of the
standards described in clauses (i) and (ii)(B) above, then the
Servicer is required to pay the amount of such waived Prepayment
Charge (the “Servicer Prepayment Charge Payment
Amount”), for the benefit of the Holders of the Class P
Certificates, by depositing such amount into the Custodial Accou
