NOMURA ASSET ACCEPTANCE CORPORATION, Depositor NOMURA CREDIT & CAPITAL, INC., Sponsor WELLS FARGO BANK, NATIONAL ASSOCIATION, Master Servicer and Securities Administrator and HSBC BANK USA, NATIONAL ASSOCIATION Trustee POOLING AND SERVICING AGREEMENT...
NOMURA
ASSET ACCEPTANCE CORPORATION,
Depositor
NOMURA
CREDIT & CAPITAL, INC.,
Sponsor
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
Master
Servicer and Securities Administrator
and
HSBC
BANK
USA, NATIONAL ASSOCIATION
Trustee
Dated
as
of August 1, 2006
NOMURA
ASSET ACCEPTANCE CORPORATION
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-WF1
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
|
Section
1.01
|
Defined
Terms.
|
|
Section
1.02
|
Allocation
of Certain Interest Shortfalls.
|
ARTICLE
II
CONVEYANCE
OF TRUST FUND REPRESENTATIONS AND WARRANTIES
|
Section
2.01
|
Conveyance
of Trust Fund.
|
|
Section
2.02
|
Acceptance
of the Mortgage Loans.
|
|
Section
2.03
|
Representations,
Warranties and Covenants of the Sponsor and the Master
Servicer.
|
|
Section
2.04
|
Representations
and Warranties of the Depositor.
|
|
Section
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
|
Section
2.06
|
Issuance
of the REMIC I Regular Interests.
|
|
Section
2.07
|
Conveyance
of the REMIC I Regular Interests; Issuance and Conveyance of the
Class X
Interest, the Class P Interest, and the Class IO Interest.
|
|
Section
2.08
|
Issuance
of the Class R Certificates and the Class R-X
Certificates.
|
|
Section
2.09
|
Establishment
of Trust.
|
|
Section
2.10
|
Purpose
and Powers of the Trust.
|
ARTICLE
III
ADMINISTRATION
OF THE MORTGAGE LOANS; ACCOUNTS
|
Section
3.01
|
Reserved.
|
|
Section
3.02
|
Reserved.
|
|
Section
3.03
|
Reserved.
|
|
Section
3.04
|
Reserved.
|
|
Section
3.05
|
Reserved.
|
|
Section
3.06
|
Reserved.
|
|
Section
3.07
|
Reserved.
|
|
Section
3.08
|
Reserved.
|
|
Section
3.09
|
Reserved.
|
|
Section
3.10
|
Reserved.
|
|
Section
3.11
|
Reserved.
|
|
Section
3.12
|
Reserved.
|
|
Section
3.13
|
Annual
Statement as to Compliance.
|
|
Section
3.14
|
Assessments
of Compliance and Attestation Reports.
|
|
Section
3.15
|
Reserved.
|
|
Section
3.16
|
The
Trustee.
|
|
Section
3.17
|
REMIC-Related
Covenants.
|
|
Section
3.18
|
Annual
Xxxxxxxx-Xxxxx Certification; Additional Information.
|
|
Section
3.19
|
Release
of Mortgage Files.
|
|
Section
3.20
|
Reserved.
|
|
Section
3.21
|
Reserved.
|
|
Section
3.22
|
Reserved.
|
|
Section
3.23
|
Reserved.
|
|
Section
3.24
|
Optional
Purchase of Defaulted Mortgage Loans.
|
|
Section
3.25
|
Obligations
of the Servicer Under Credit Risk Management Agreement.
|
|
Section
3.26
|
Reserved.
|
|
Section
3.27
|
Reserved.
|
|
Section
3.28
|
Reserved.
|
|
Section
3.29
|
Reserved.
|
|
Section
3.30
|
Reserved.
|
|
Section
3.31
|
Distribution
Account.
|
|
Section
3.32
|
Permitted
Withdrawals and Transfers from the Distribution Account.
|
|
Section
3.33
|
Duties
of the Credit Risk Manager; Termination.
|
|
Section
3.34
|
Limitation
Upon Liability of the Credit Risk Manager.
|
ARTICLE
IV
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS
|
Section
4.01
|
The
Master Servicer.
|
|
Section
4.02
|
Monitoring
of Servicer.
|
|
Section
4.03
|
Fidelity
Bond.
|
|
Section
4.04
|
Power
to Act; Procedures.
|
|
Section
4.05
|
Due-on-Sale
Clauses; Assumption Agreements.
|
|
Section
4.06
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
|
|
Section
4.07
|
Standard
Hazard Insurance and Flood Insurance Policies.
|
|
Section
4.08
|
Presentment
of Claims and Collection of Proceeds.
|
|
Section
4.09
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
|
Section
4.10
|
Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
|
|
Section
4.11
|
Realization
Upon Defaulted Loans.
|
|
Section
4.12
|
Compensation
for the Master Servicer.
|
|
Section
4.13
|
REO
Property.
|
|
Section
4.14
|
Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
ARTICLE
V
ADVANCES
AND DISTRIBUTIONS
|
Section
5.01
|
Advances.
|
|
Section
5.02
|
Compensating
Interest Payments.
|
|
Section
5.03
|
REMIC
Distributions.
|
|
Section
5.04
|
Distributions.
|
|
Section
5.05
|
Allocation
of Realized Losses.
|
|
Section
5.06
|
Reserved.
|
|
Section
5.07
|
Monthly
Statements to Certificateholders.
|
|
Section
5.08
|
REMIC
Designations and REMIC Allocations.
|
|
Section
5.09
|
Prepayment
Charges.
|
|
Section
5.10
|
Class
P Certificate Account.
|
|
Section
5.11
|
Net
WAC Reserve Fund.
|
|
Section
5.12
|
Reports
Filed with Securities and Exchange Commission.
|
ARTICLE
VI
THE
CERTIFICATES
|
Section
6.01
|
The
Certificates.
|
|
Section
6.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
|
Section
6.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
Section
6.04
|
Persons
Deemed Owners.
|
|
Section
6.05
|
Access
to List of Certificateholders’ Names and Addresses.
|
|
Section
6.06
|
Book-Entry
Certificates.
|
|
Section
6.07
|
Notices
to Depository.
|
|
Section
6.08
|
Definitive
Certificates.
|
|
Section
6.09
|
Maintenance
of Office or Agency.
|
ARTICLE
VII
THE
DEPOSITOR AND THE MASTER SERVICER
|
Section
7.01
|
Liabilities
of the Depositor and the Master Servicer.
|
|
Section
7.02
|
Merger
or Consolidation of the Depositor or the Master Servicer.
|
|
Section
7.03
|
Indemnification
of the Depositor and Servicing Function Participants.
|
|
Section
7.04
|
Limitations
on Liability of the Depositor, Securities Administrator, Master Servicer,
Servicer and Others.
|
|
Section
7.05
|
Reserved.
|
|
Section
7.06
|
Appointment
of Special Servicer.
|
|
Section
7.07
|
Limitation
on Resignation of the Master Servicer.
|
|
Section
7.08
|
Assignment
of Master Servicing.
|
|
Section
7.09
|
Rights
of the Depositor in Respect of the Master Servicer.
|
ARTICLE
VIII
DEFAULT;
TERMINATION OF SERVICER AND MASTER SERVICER
|
Section
8.01
|
Events
of Default.
|
|
Section
8.02
|
Master
Servicer to Act; Appointment of Successor.
|
|
Section
8.03
|
Notification
to Certificateholders.
|
|
Section
8.04
|
Waiver
of Servicer Defaults and Master Servicer Defaults.
|
ARTICLE
IX
CONCERNING
THE TRUSTEE AND SECURITIES ADMINISTRATOR
|
Section
9.01
|
Duties
of Trustee and Securities Administrator.
|
|
Section
9.02
|
Certain
Matters Affecting the Trustee and Securities
Administrator.
|
|
Section
9.03
|
Trustee
and Securities Administrator not Liable for Certificates or Mortgage
Loans.
|
|
Section
9.04
|
Trustee
and Securities Administrator May Own Certificates.
|
|
Section
9.05
|
Fees
and Expenses of Trustee and Securities Administrator.
|
|
Section
9.06
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
|
Section
9.07
|
Resignation
and Removal of Trustee and Securities Administrator.
|
|
Section
9.08
|
Successor
Trustee or Securities Administrator.
|
|
Section
9.09
|
Merger
or Consolidation of Trustee or Securities Administrator.
|
|
Section
9.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
Section
9.11
|
Appointment
of Office or Agency.
|
|
Section
9.12
|
Representations
and Warranties.
|
|
Section
9.13
|
Tax
Matters.
|
ARTICLE
X
TERMINATION
|
Section
10.01
|
Termination
Upon Liquidation or Repurchase of all Mortgage Loans.
|
|
Section
10.02
|
Final
Distribution on the Certificates.
|
|
Section
10.03
|
Additional
Termination Requirements.
|
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
Section
11.01
|
Amendment.
|
|
Section
11.02
|
Recordation
of Agreement; Counterparts.
|
|
Section
11.03
|
Governing
Law.
|
|
Section
11.04
|
Intention
of Parties.
|
|
Section
11.05
|
Notices.
|
|
Section
11.06
|
Severability
of Provisions.
|
|
Section
11.07
|
Assignment.
|
|
Section
11.08
|
Limitation
on Rights of Certificateholders.
|
|
Section
11.09
|
Certificates
Nonassessable and Fully Paid.
|
|
Section
11.10
|
Intention
of the Parties and Interpretation.
|
|
Section
11.11
|
Early
Termination of the Cap Contract.
|
EXHIITS
|
Exhibit
A-1
|
Form
of Class A-[1][2][3][4][5][6] Certificates
|
|
|
Exhibit
A-2
|
Form
of Class M-[1][2][3][4] Certificates
|
|
|
Exhibit
A-3
|
Form
of Class P Certificates
|
|
|
Exhibit
A-4
|
Form
of Class R Certificates
|
|
|
Exhibit
A-5
|
Form
of Class X Certificates
|
|
|
Exhibit
A-6
|
Form
of Class R-X Certificates
|
|
|
Exhibit
B
|
Mortgage
Loan Schedule
|
|
|
Exhibit
C
|
Form
of Mortgage Loan Purchase Agreement
|
|
|
Exhibit
D
|
Form
of Transfer Affidavit
|
|
|
Exhibit
E
|
Form
of Transferor Certificate
|
|
|
Exhibit
F
|
Form
of Investment Letter (Non-Rule 144A)
|
|
|
Exhibit
G
|
Form
of Rule 144A Investment Letter
|
|
|
Exhibit
H
|
Form
of Additional Disclosure Notification
|
|
|
Exhibit
I
|
DTC
Letter of Representations
|
|
|
Exhibit
J
|
Schedule
of Mortgage Loans with Lost Notes
|
|
|
Exhibit
K
|
Appendix
E of the Standard & Poor's Glossary For File Format For LEVELS®
Version 5.6 Revised
|
|
|
Exhibit
L
|
Relevant
Servicing Criteria
|
|
|
Exhibit
M
|
Form
of Back-Up Certification
|
|
|
Exhibit
N
|
Reporting
Responsibility
|
|
|
Exhibit
O
|
Assignment,
Assumption and Recognition Agreement
|
|
|
Exhibit
P
|
Cap
Contract
|
|
|
Exhibit
X-1
|
Form
of Schedule of Default Loan Data
|
|
|
Exhibit
X-2
|
Standard
File Layout - Delinquency Reporting
|
|
|
Exhibit
X-3
|
Form
of Schedule of Realized Losses/Gains
|
|
|
Schedule
I
|
PMI
Coverage Percentage
|
POOLING
AND SERVICING AGREEMENT, dated as of August 1, 2006, 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 “Sponsor”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national
banking association, as master servicer (the “Master Servicer”) and securities
administrator (the “Securities Administrator”) and HSBC BANK, USA, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity,
but
solely as trustee (the “Trustee”).
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates.
REMIC I
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets as set forth in the definition of REMIC I (and exclusive of
the
Cap Contact and the Net WAC Reserve Fund) subject to this Agreement as a real
estate mortgage investment conduit (a “REMIC”) for federal income tax purposes,
and such segregated pool of assets will be designated as “REMIC I”. The
Class R-1 Interest will represent the sole class of “residual interests” in
REMIC I for purposes of the REMIC Provisions (as defined herein) under
federal income tax law. The following table irrevocably sets forth the
designation, the Uncertificated REMIC I Pass-Through Rate, the Initial
Uncertificated Principal Balance, and for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date”
for each of the REMIC IA Regular Interests. None of the REMIC I
Regular Interests will be certificated.
|
Designation
|
Initial
Uncertificated
Principal
Balance
|
Uncertificated
REMIC I
Pass-Through
Rate
|
Assumed
Final
Maturity
Date(1)
|
|
LT-AA
|
$ 334,159,462.12
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
1,339,550.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
284,800.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
378,860.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
504,230.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
261,490.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$ 306,700.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
117,640.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
104,000.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
59,670.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
34,100.00
|
Variable(2)
|
June
25, 2036
|
|
LT-ZZ
|
$
3,428,540.86
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X
|
$ 100.00
|
N/A
|
June
25, 2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each REMIC I Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC I
Pass-Through Rate” herein.
|
REMIC II
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the REMIC I Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as “REMIC II”. The Class R-2 Interest will represent the sole
class of “residual interests” in REMIC II for purposes of the REMIC
Provisions. The following table irrevocably sets forth the Class designation,
Pass-Through Rate and Initial Certificate Principal Balance for each Class
of
Certificates that represents one or more of the “regular interests” in
REMIC II created hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Maturity
Date(1)
|
|
Class
A-1
|
$
133,955,000
|
Class
A-1 Pass-Through Rate
|
June
25, 2036
|
|
Class
A-2
|
$
28,480,000
|
Class
A-2 Pass-Through Rate
|
June
25, 2036
|
|
Class
A-3
|
$
37,886,000
|
Class
A-3 Pass-Through Rate
|
June
25, 2036
|
|
Class
A-4
|
$
50,423,000
|
Class
A-4 Pass-Through Rate
|
June
25, 2036
|
|
Class
A-5
|
$
26,149,000
|
Class
A-5 Pass-Through Rate
|
June
25, 2036
|
|
Class
A-6
|
$
30,670,000
|
Class
A-6 Pass-Through Rate
|
June
25, 2036
|
|
Class
M-1
|
$
11,764,000
|
Class
M-1 Pass-Through Rate
|
June
25, 2036
|
|
Class
M-2
|
$
10,400,000
|
Class
M-2 Pass-Through Rate
|
June
25, 2036
|
|
Class
M-3
|
$
5,967,000
|
Class
M-3 Pass-Through Rate
|
June
25, 2036
|
|
Class
M-4
|
$
3,410,000
|
Class
M-4 Pass-Through Rate
|
June
25, 2036
|
|
Class
X Interest
|
$1,875,042.98 (2)
|
Class
X Pass-Through Rate
|
June
25, 2036
|
|
Class
P Interest
|
$
100.00
|
N/A(3)
|
June
25, 2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each Class of
Certificates.
|
|
(2)
|
The
Class X Interest will not accrue interest on its Certificate Principal
Balance, but will accrue interest at the Class X Pass-Through Rate
on the
Certificate Notional Balance of the Class X Interest 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 LT-P).
|
|
(3)
|
The
Class P Interest will not be entitled to distributions in respect
of
interest.
|
REMIC
III
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class X Interest Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as “REMIC III”. The R-3 Interest will represent the sole class of
“residual interests” in REMIC III for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC III created
hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Class
X
|
$
[
]
|
(2)
|
June
25, 2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the second month following the maturity
date for
the Mortgage Loan with the latest maturity date has been designated
as the
“latest possible maturity date” for the Class X
Certificates.
|
|
(2)
|
The
Class X Certificates will be entitled to 100% of amounts distributed
on
the Class X Interest.
|
REMIC
IV
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class P Interest Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as “REMIC IV”. The R-4 Interest will represent the sole class of
“residual interests” in REMIC IV for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC IV created
hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Class
P
|
$ 100
|
(2)
|
June
25, 2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the second month following the maturity
date for
the Mortgage Loan with the latest maturity date has been designated
as the
“latest possible maturity date” for the Class P
Certificates.
|
|
(2)
|
The
Class P Certificates will be entitled to 100% of amounts distributed
on
the Class P Interest.
|
REMIC
V
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class IO Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC V”. The R-5 interest will represent the sole class of
“residual interests” in REMIC V for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC V created
hereunder:
|
Class
Designation
|
Initial
Certificate
Notional
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Swap-IO
|
(2)
|
(3)
|
June
25, 2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the second month following the maturity
date for
the Mortgage Loan with the latest maturity date has been designated
as the
“latest possible maturity date” for REMIC VI Regular Interest
Swap-IO.
|
|
(2)
|
REMIC
VI Regular Interest Swap-IO will have not a Certificate Notional
Balance
but will be entitled to 100% of amounts distributed on the Class
IO
Interest.
|
|
(3)
|
REMIC
VI Regular Interest Swap-IO will be entitled to 100% of amounts
distributed on the Class IO Interest.
|
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Securities Administrator, the Sponsor and the Trustee
agree
as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
In
addition to those terms defined in Section 1.02, whenever used in this
Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Accepted
Master Servicing Practices:
With
respect to any Mortgage Loan, those customary mortgage master servicing
practices of prudent mortgage servicing institutions that master service
mortgage loans of the same type and quality as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Master Servicer.
Account:
Either
the Distribution Account or the Custodial Account.
Accrual
Period:
With
respect to the Certificates (other than the Class A-1 Certificates), the
calendar month immediately preceding such Distribution Date. With respect to
the
Class A-1 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 Certificates
(other than the Class A-1 Certificates) will be based on a 360-day year
consisting of twelve 30-day months. All calculations of interest on the Class
A-1 Certificates will be made based on a 360-day year and the actual number
of
days elapsed in the related Accrual Period.
Additional
Disclosure Notification:
Has the
meaning set forth in Section 5.12 of this Agreement.
Additional
Form 10-D Disclosure:
Has the
meaning set forth in Section 5.12(a) of this Agreement.
Additional
Form 10-K Disclosure:
Has the
meaning set forth in Section 5.12(d) of this Agreement.
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 the Servicing Agreement
or
by the Trustee pursuant to Section 5.01.
Aggregate
Loan Balance:
With
respect to any Distribution Date, the aggregate of the Stated Principal Balances
of the Mortgage Loans 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.
Appraised
Value:
With
respect to any Mortgage Loan originated in connection with a refinancing, the
appraised value of the Mortgaged Property based upon the appraisal made at
the
time of such refinancing or, with respect to any other Mortgage Loan, the lesser
of (x) the appraised value of the Mortgaged Property based upon the appraisal
made by a fee appraiser at the time of the origination of the Mortgage Loan,
and
(y) the sales price of the Mortgaged Property at the time of such
origination.
Assignment
Agreement:
Shall
mean the Assignment, Assumption and Recognition Agreement, dated as of August
31, 2006, among the Sponsor, the Depositor and the Servicer, pursuant to which
the Servicing Agreement was assigned to the Depositor, a copy of which is
attached hereto as Exhibit O.
Assumed
Final Distribution Date:
The
Distribution Date in July 2036.
Authorized
Servicer Representative:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name and facsimile signature appear on
a
list of servicing officers furnished to the Trustee and the Master Servicer
by
the Servicer on the Closing Date, as such list may from time to time be
amended.
Available
Distribution Amount:
The sum
of the Interest Remittance Amount and Principal Funds, exclusive of amounts
pursuant to Section 5.09.
Bankruptcy
Code:
Title
11 of the United States Code.
Book-Entry
Certificates:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in
Section 6.06). As of the Closing Date, each Class of Publicly Offered
Certificates constitutes a Class of Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a day on which banking
institutions in the State of New York, the State of Delaware, the State of
Maryland, the State of Minnesota, the city in which any Corporate Trust Office
of the Securities Administrator or 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 Cap Provider, for the benefit
of the Holders of the Class A-1 Certificates attached hereto as Exhibit
P.
Cap
Provider:
Nomura
Global Financial Products Inc., or any successor thereto.
Certificate:
Any one
of the certificates of any Class executed and authenticated by the Securities
Administrator in substantially the forms attached hereto as Exhibits A-1 through
A-5.
Certificate
Notional Balance:
With
respect to the Class X Certificates and any Distribution Date, the
Uncertificated Principal Balance of the REMIC I Regular Interests (other
than REMIC I Regular Interest LT-P) for such Distribution Date. As of the
Closing Date, the Certificate Notional Balance of the Class X Certificates
is
equal to $1,875,043.00.
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 class of Publicly Offered Certificate and as of any Distribution Date,
the
Initial Certificate Principal Balance of such Certificate plus any Subsequent
Recoveries added to the Certificate Principal Balance of such Certificate
pursuant to Section 5.05(f) less the sum of (i) all amounts distributed
with respect to such Certificate in reduction of the Certificate Principal
Balance thereof on previous Distribution Dates pursuant to Section 5.04,
and (ii) with respect to the Mezzanine Certificates, any reductions in the
Certificate Principal Balance of such Certificate deemed to have occurred in
connection with the allocations of Realized Losses, if any. The initial
Certificate Principal Balance of the Class P Certificates is equal to $100.
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).
Certification
Parties:
Has the
meaning set forth in Section 3.18 of this Agreement.
Certifying
Person:
Has the
meaning set forth in Section 3.18 of this Agreement.
Class:
All
Certificates bearing the same Class designation as set forth in
Section 6.01.
Class
A-1 Certificate:
Any
Certificate designated as a “Class A-1 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to the Percentage Interest of distributions provided
for
the Class A-1 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-1 Pass-Through Rate:
With
respect to any Distribution Date, One-Month LIBOR plus 0.10% per annum, subject
to a cap equal to the Net WAC Rate Cap for such Distribution Date.
Class
A-2 Certificate:
Any
Certificate designated as a “Class A-2 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class A-2 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-2 Pass-Through Rate:
With
respect to any Distribution Date, 5.755% per annum, subject to a cap equal
to
the Net WAC Rate Cap for such Distribution Date.
Class
A-3 Certificate:
Any
Certificate designated as a “Class A-3 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class A-3 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-3 Pass-Through Rate:
With
respect to any Distribution Date, 5.769% per annum, subject to a cap equal
to
the Net WAC Rate Cap for such Distribution Date.
Class
A-4 Certificate:
Any
Certificate designated as a “Class A-4 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class A-4 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-4 Pass-Through Rate:
With
respect to any Distribution Date, 6.026% per annum, subject to a cap equal
to
the Net WAC Rate Cap for such Distribution Date.
Class
A-5 Certificate:
Any
Certificate designated as a “Class A-5 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class A-5 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-5 Pass-Through Rate:
Shall
mean (i) with respect to any Distribution Date which occurs on or prior to
the
Optional Termination Date, 6.257% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 6.757% per annum, in each case,
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
A-6 Certificate:
Any
Certificate designated as a “Class A-6 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class A-6 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-6 Pass-Through Rate:
Shall
mean (i) with respect to any Distribution Date which occurs on or prior to
the
Optional Termination Date, 5.840% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 6.340% per annum, in each case,
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
A-6 Lockout Principal Distribution Amount:
With
respect to any Distribution Date will be an amount equal to the least of (i)
the
Certificate Principal Balance of the Class A-6 Certificates, (ii) the Senior
Principal Distribution Amount for such Distribution Date and (iii) the Class
A-6
Lockout Distribution Percentage for that Distribution Date multiplied by the
product of (x) a fraction, the numerator of which is the Certificate Principal
Balance of the Class A-6 Certificates and the denominator of which is the
aggregate Certificate Principal Balance of all of the Senior Certificates,
in
each case immediately prior to such Distribution Date and (y) the Senior
Principal Distribution Amount for such Distribution Date.
Class
A-6 Lockout Distribution Percentage:
With
respect to each Distribution Date, the applicable percentage set forth
below:
|
Distribution
Dates
|
Class
A-6 Lockout
Distribution
Percentage
|
|
September
2006 through and including August 2009
|
0%
|
|
September
2009 through and including August 2011
|
45%
|
|
September
2011 through and including August 2012
|
80%
|
|
September
2012 through and including August 2013
|
100%
|
|
September
2013 and thereafter
|
300%
|
Class
M-1 Certificate:
Any
Certificate designated as a “Class M-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 M-1 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
M-1 Pass-Through Rate:
Shall
mean (i) with respect to each Distribution Date which occurs on or prior to
the
Optional Termination Date, 6.132% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 6.632% per annum, in each case
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
M-1 Principal Distribution Amount:
With
respect to any Distribution Date which occurs (i) prior to the Stepdown Date
or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount or
(ii)
on or after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
| · |
the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount;
and
|
| · |
the
excess, if any, of (A) the aggregate Certificate Principal Balance
of the
Class M-1 Certificates immediately prior to that Distribution Date
over
(B) the positive difference between (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due
Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Senior Certificates after taking into account
the
payment of the Senior Principal Distribution Amount for such Distribution
Date and (y) the product of (a) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period (after
reduction for Realized Losses incurred during the related Prepayment
Period) and (b) the sum of 11.60% and the Required Overcollateralization
Percentage.
|
Class
M-2 Certificate:
Any
Certificate designated as a “Class M-2 Certificate” on the face thereof, in the
form of Exhibit
A-2
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class M-2 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
M-2 Pass-Through Rate:
Shall
mean (i) with respect to each Distribution Date which occurs on or prior to
the
Optional Termination Date, 6.429% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 6.929% per annum, in each case
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
M-2 Principal Distribution Amount:
With
respect to any Distribution Date which occurs (i) prior to the Stepdown Date
or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount and
the
Class M-1 Principal Distribution Amount or (ii) on or after the Stepdown Date
if
a Trigger Event is not in effect for that Distribution Date, the lesser
of:
| · |
the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount and the
Class M-1
Principal Distribution Amount; and
|
| · |
the
excess, if any, of (A) the aggregate Certificate Principal Balance
of the
Class M-2 Certificates immediately prior to that Distribution Date
over
(B) the positive difference between (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due
Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Senior Certificates and the Class M-1
Certificates after taking into account the payment of the Senior
Principal
Distribution Amount and the Class M-1 Principal Distribution Amount
for
such Distribution Date and (y) the product of (a) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period (after reduction for Realized Losses incurred during the
related Prepayment Period) and (b) the sum of 5.50% and the Required
Overcollateralization Percentage.
|
Class
M-3 Certificate:
Any
Certificate designated as a “Class M-3 Certificate” on the face thereof, in the
form of Exhibit
A-2
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class M-3 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
M-3 Pass-Through Rate:
Shall
mean (i) with respect to each Distribution Date which occurs on or prior to
the
Optional Termination Date, 6.700% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 7.200% per annum, in each case
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
M-3 Principal Distribution Amount:
With
respect to any Distribution Date which occurs (i) prior to the Stepdown Date
or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount, the
Class M-1 Principal Distribution Amount and the Class M-2 Principal Distribution
Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in effect
for that Distribution Date, the lesser of:
| · |
the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount and the Class M-2 Principal Distribution
Amount; and
|
| · |
the
excess, if any, of (A) the aggregate Certificate Principal Balance
of the
Class M-3 Certificates immediately prior to that Distribution Date
over
(B) the positive difference between (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due
Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Senior Certificates, the Class M-1 Certificates
and the Class M-2 Certificates (after taking into account the payment
of
the Senior Principal Distribution Amount, the Class M-1 Principal
Distribution Amount and the Class M-2 Principal Distribution Amount
for
such Distribution Date) and (y) the product of (a) the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period (after reduction for Realized Losses incurred during the
related Prepayment Period) and (b) the sum of 2.00% and the Required
Overcollateralization Percentage.
|
Class
M-4 Certificate:
Any
Certificate designated as a “Class M-4 Certificate” on the face thereof, in the
form of Exhibit
A-2
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:
Shall
mean (i) with respect to each Distribution Date which occurs on or prior to
the
Optional Termination Date, 6.700% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 7.300% per annum, in each case
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
M-4 Principal Distribution Amount:
With
respect to any Distribution Date which occurs (i) prior to the Stepdown Date
or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount, the
Class M-1 Principal Distribution Amount, the Class M-2 Principal Distribution
Amount and the Class M-3 Principal Distribution Amount or (ii) on or after
the
Stepdown Date if a Trigger Event is not in effect for that Distribution Date,
the lesser of:
| · |
the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount, the Class M-2 Principal Distribution
Amount
and the Class M-3 Principal Distribution Amount;
and
|
| · |
the
excess, if any, of (A) the aggregate Certificate Principal Balance
of the
Class M-4 Certificates immediately prior to that Distribution Date
over
(B) the positive difference between (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due
Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Senior Certificates, the Class M-1 Certificates,
the Class M-2 Certificates and the Class M-3 Certificates (after
taking
into account the payment of the Senior Principal Distribution Amount,
the
Class M-1 Principal Distribution Amount, the Class M-2 Principal
Distribution Amount and the Class M-3 Principal Distribution Amount
for
such Distribution Date) and (y) the product of (a) the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period (after reduction for Realized Losses incurred during the
related Prepayment Period) and (b) the Required Overcollateralization
Percentage.
|
Class
P Certificate:
Any
Certificate designated as a “Class P Certificate” on the face thereof, in the
form of Exhibit
A-3
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 IV.
Class
P Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
Holders of the Class P Certificates, evidencing a Regular Interest in REMIC
II
for purposes of the REMIC Provisions.
Class
P Certificate Account:
The
Eligible Account established and maintained by the Securities Administrator
pursuant to Section 5.09.
Class
R Certificate:
Any
Certificate designated a “Class R Certificate” on the face thereof, in
substantially the form set forth in Exhibit
A-4
hereto,
evidencing the Class R-1 Interest and Class R-2 Interest.
Class
R-X Certificate:
The
Class R-X Certificate executed by the Trustee, and authenticated and delivered
by the Certificate Registrat, substantially in the form annexed hereto as
Exhibit A-6 and evidencing the ownership of the Class R-3 Interest, the Class
R-4 Interest and the Class R-5 Interest.
Class
R-1 Interest:
The
uncertificated residual interest in REMIC I.
Class
R-2 Interest:
The
uncertificated residual interest in REMIC II.
Class
R-3 Interest:
The
uncertificated residual interest in REMIC III.
Class
R-4 Interest:
The
uncertificated residual interest in REMIC IV.
Class
R-5 Interest:
The
uncertificated residual interest in REMIC V.
Class
X Certificate:
Any
Certificate designated as a “Class X 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 X Certificates herein and evidencing a Regular Interest in
REMIC III.
Class
X Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the Excess Cap Payment, (ii)
the Interest Distribution Amount for the Class X Certificates for such
Distribution Date and (iii) any Overcollateralization Reduction Amount for
such
Distribution Date remaining after payments pursuant to items 1 though 6 of
clause Third
of
Section 5.04(a); provided, however that on and after the Distribution Date
on which the aggregate Certificate Principal Balance of the Certificates has
been reduced to zero, the Class X Distribution Amount shall include the
Overcollateralization Amount.
Class
X Pass-Through Rate:
On any
Distribution Date, a per annum rate equal to the percentage equivalent of a
fraction, the numerator of which is the sum of the amounts calculated pursuant
to clauses (A) through (L) below, and the denominator of which is the aggregate
of the Uncertificated Principal Balances of the REMIC I Regular Interests
(other than REMIC I Regular Interest LT-P). For purposes of calculating the
Pass-Through Rate for the Class X Certificates, the numerator is equal to the
sum of the following components:
(A)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-AA
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-AA;
(B)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A1;
(C)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A2;
(D)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A3;
(E)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A4
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A4;
(F)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A5
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A5;
(G)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A6
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A6;
(H)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-M1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-M1;
(I)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-M2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-M2;
(J)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-M3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-M3;
(K) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-M4
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-M4; and
(L) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-ZZ
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-ZZ.
Class
X Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
Holders of the Class X Certificates, evidencing a Regular Interest in REMIC
II
for purposes of the REMIC Provisions.
Cleanup
Call:
As
defined in Section 10.01.
Closing
Date:
August
30, 2006.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Commission:
Shall
mean the United States Securities and Exchange Commission.
Compensating
Interest:
With
respect to any Distribution Date, an amount to be deposited in the Distribution
Account by the Servicer pursuant to the Servicing Agreement or the Master
Servicer pursuant to this Agreement to offset a Prepayment Interest Shortfall
on
a Mortgage Loan; provided, however that the amount of Compensating Interest
required to be paid in respect of the Mortgage Loans shall not exceed the
Servicing Fee payable to the Servicer or, in the case of the Master Servicer,
shall not exceed the Master Servicing Compensation payable to the Master
Servicer with respect to the related Prepayment Period.
Controlling
Person:
Means,
with respect to any Person, any other Person who “controls” such Person within
the meaning of the Securities Act.
Corporate
Trust Office:
The
principal corporate trust office of the Trustee or the Securities Administrator,
as the case maybe, at which, at any particular time its corporate business
in
connection with this agreement shall be administered, which office at the date
of the execution of this instrument is located at (ii) in the case of the
Trustee, HSBC Bank USA, National Association, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Nomura Asset Acceptance Corp., 2006-WF1 or at such other
address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator and the Servicer, and (ii) with respect to the office of the
Securities Administrator, which for purposes of Certificate transfers and
surrender is located at Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services-Client
Manager (NAAC 2006-WF1), and for all other purposes is located at Xxxxx Xxxxx
Xxxx, X.X., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services-Client Manager (NAAC 2006-WF1) (or for overnight deliveries, at 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services-Client Manager (NAAC 2006-WF1)), or at such other address as the
Securities Administrator may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer, the Servicer and the
Trustee.
Corresponding
Certificate:
With
respect to:
|
(i)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-1 Certificates,
|
|
|
(ii)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-2 Certificates;
|
|
|
(iii)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-3 Certificates;
|
|
|
(iv)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-4 Certificates;
|
|
|
(v)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-5 Certificates;
|
|
|
(vi)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-6 Certificates;
|
|
|
(vii)
|
REMIC
I Regular Interest LT-M1, the Class M-1 Certificates;
|
|
|
(viii)
|
REMIC
I Regular Interest LT-M2, the Class M-2 Certificates;
|
|
|
(ix)
|
REMIC
I Regular Interest LT-M3, the Class M-3 Certificates;
|
|
|
(x)
|
REMIC
I Regular Interest LT-M4, the Class M-4 Certificates;
and
|
|
|
(xi)
|
REMIC
I Regular Interest LT-P, the Class P
Certificates.
|
Coverage
Percentage:
With
respect to each Covered Mortgage Loan, the percentage of coverage provided
by
the PMI Policy (as set forth in Schedule I, which will remain static throughout
the life of the transaction).
Covered
Mortgage Loan:
Each
Mortgage Loan covered by the PMI Policy, as identified on the schedule attached
hereto as Schedule 2.
Credit
Enhancement Percentage:
With
respect to any Distribution Date and any Class of Publicly Offered Certificates,
the percentage obtained by dividing (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class or Classes of Publicly Offered Certificates
subordinate thereto and (ii) the Overcollateralization Amount by (y) the
aggregate Stated Principal Balance of the Mortgage Loans, calculated after
taking into account distributions of principal on the Mortgage Loans and
distribution of the Principal Distribution Amount to the holders of the Publicly
Offered Certificates then entitled to distributions of principal on such
Distribution Date.
Credit
Risk Management Agreement:
The
agreement between the Credit Risk Manager and the Servicer and/or Master
Servicer, dated as of August 30, 2006.
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 Sponsor
pursuant to Section 3.32(a)(vii) and 3.33(b).
Credit
Risk Management Fee Rate:
0.005%
per annum.
Credit
Risk Manager:
Portfolio Surveillance Analytics, LLC, and its successors and
assigns.
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 the terms
and
conditions of the Servicing Agreement.
Custodial
Agreement:
The
Custodial Agreement dated as of August 1, 2006 among the Custodian, the Servicer
and the Trustee.
Custodian:
Xxxxx
Fargo Bank, N.A., a national banking association, or any successor thereto
appointed pursuant to the Custodial Agreement.
Cut-off
Date:
August
1, 2006.
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, the unpaid principal balance thereof as of the close of
business on the Cut-off Date after application of all Principal Prepayments
received prior to the Cut-off Date and scheduled payments of principal due
on or
before the Cut-off Date, whether or not received, but without giving effect
to
any installments of principal received in respect of Due Dates after the Cut-off
Date.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction by a court of competent jurisdiction
in a proceeding under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan that became final and non-appealable, except such a reduction
resulting from a Deficient Valuation or any other reduction that results in
a
permanent forgiveness of principal.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, or any reduction in the amount of
principal to be paid in connection with any Scheduled Payment that results
in a
permanent forgiveness of principal, which valuation or reduction results from
an
order of such court that is final and non-appealable in a proceeding under
the
Bankruptcy Code.
Definitive
Certificates:
As
defined in Section 6.06.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Replacement Mortgage
Loan.
Delinquent:
A
Mortgage Loan is “delinquent” if any payment due thereon is not made pursuant to
the terms of such Mortgage Loan by the close of business on the day such payment
is scheduled to be due. A Mortgage Loan is “30 days delinquent” if such payment
has not been received by the close of business on the corresponding day of
the
month immediately succeeding the month in which such payment was due, or, if
there is no such corresponding day (e.g., as when a 30-day month follows a
31-day month in which a payment was due on the 31st day of such month), then
on
the last day of such immediately succeeding month. Similarly for “60 days
delinquent,” “90 days delinquent” and so on.
Denomination:
With
respect to each Certificate, the amount set forth on the face thereof as the
“Initial Certificate Principal Balance of this Certificate”.
Depositor:
Nomura
Asset Acceptance Corporation, a Delaware corporation, or its successor in
interest.
Depository:
The
initial Depository shall be The Depository Trust Company (“DTC”), the nominee of
which is Cede & Co., or any other organization registered as a “clearing
agency” pursuant to Section 17A of the Exchange Act. The Depository shall
initially be the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a “clearing corporation” as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New
York.
Depository
Agreement:
With
respect to the Class of Book-Entry Certificates, the agreement among the
Depositor, the Trustee and the initial Depository, dated as of the Closing
Date,
substantially in the form of Exhibit I.
Depository
Participant:
A
broker, dealer, bank or other financial institution or other Person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
Determination
Date:
With
respect to any Distribution Date, the fifteenth (15th)
day of
the month of such Distribution Date or, if such day is not a Business Day,
the
immediately preceding Business Day.
Distribution
Account:
The
separate Eligible Account created and maintained by the Securities Administrator
pursuant to Section 3.31 for the benefit of the Certificateholders,
designated “Xxxxx Fargo Bank, N.A., in trust for registered holders of Nomura
Asset Acceptance Corp., Mortgage Pass-Through Certificates, Series 2006-WF1”.
Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement.
Distribution
Date:
The
twenty-fifth (25th)
day of
each calendar month after the initial issuance of the Certificates, or if such
twenty-fifth day is not a Business Day, the next succeeding Business Day,
commencing in September 2006.
Due
Date:
As to
any Mortgage Loan, the date in each month on which the related Scheduled Payment
is due, as set forth in the related Mortgage Note.
Due
Period:
With
respect to any Distribution Date, the period from the second day of the calendar
month preceding the calendar month in which such Distribution Date occurs
through the close of business on the first day of the calendar month in which
such Distribution Date occurs.
Eligible
Account:
Any of
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company, the long-term unsecured debt
obligations and short-term unsecured debt obligations of which are rated by
each
Rating Agency in one of its two highest long-term and its highest short-term
rating categories respectively, at the time any amounts are held on deposit
therein, or (ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered
to
the Trustee and to each Rating Agency, the Certificateholders have a claim
with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a segregated, non-interest bearing trust
account or accounts maintained with the corporate trust department of a federal
or state chartered depository institution or trust company having capital and
surplus of not less than $50,000,000, acting in its fiduciary capacity or (iv)
any other account acceptable to the Rating Agencies as evidenced in writing
by
the Rating Agencies. Eligible Accounts may bear interest, and may include,
if
otherwise qualified under this definition, accounts maintained with the Trustee
or Securities Administrator.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA
Restricted Certificate:
Each of
the Class X, Class P and Class R Certificates.
Excess
Liquidation Proceeds:
To the
extent not required by law to be paid to the related Mortgagor, the excess,
if
any, of any Liquidation Proceeds with respect to a Mortgage Loan over the Stated
Principal Balance of such Mortgage Loan and accrued and unpaid interest at
the
related Mortgage Rate through the last day of the month in which the Mortgage
Loan has been liquidated.
Exchange
Act:
Securities and Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Exemption:
Prohibited Transaction Exemption 93-32, as amended from time to
time.
Expense
Fee Rate:
The sum
of the Credit Risk Management Fee Rate, the Servicing Fee Rate, the Master
Servicing Fee Rate and the PMI Insurer Fee Rate, if applicable. In attributable
to the Mortgage Loans.
Extra
Principal Distribution Amount:
With
respect to any Distribution Date, the lesser of (x) the Net Monthly Excess
Cashflow for such Distribution Date and (y) the Overcollateralization Increase
Amount for such Distribution Date.
Xxxxxx
Mae:
Xxxxxx
Xxx (formerly, Federal National Mortgage Association), or any successor
thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Sponsor or the Master Servicer
pursuant to or as contemplated by Section 2.03(c) or Section 10.01), a
determination made by the Servicer pursuant to the Servicing Agreement that
all
Insurance Proceeds, Liquidation Proceeds and other payments or recoveries which
the Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records of each Final Recovery Determination made thereby.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as
amended.
Fitch:
Fitch
Ratings.
Form
8-K Disclosure Information:
Has the
meaning set forth in Section 5.12(b) of this Agreement.
Xxxxxxx
Mac:
Federal
Home Loan Mortgage Corporation, or any successor thereto.
Indemnified
Persons:
The
Trustee, the Master Servicer, the Securities Administrator, the Custodian,
the
Trust Fund and their officers, directors, agents and employees and, with respect
to the Trustee, any separate co-trustee and its officers, directors, agents
and
employees.
Independent:
When
used with respect to any specified Person, any such Person who (a) is in fact
independent of the Depositor, the Master Servicer, the Securities Administrator,
the Servicer, the Sponsor, any originator and their respective Affiliates,
(b)
does not have any direct financial interest in or any material indirect
financial interest in the Depositor, the Master Servicer, the Securities
Administrator, the Servicer, the Sponsor, any originator or any Affiliate
thereof, and (c) is not connected with the Depositor, the Master Servicer,
the
Securities Administrator, the Servicer, the Sponsor, any originator or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Master
Servicer, the Securities Administrator, the Servicer, the Sponsor, any
originator or any Affiliate thereof merely because such Person is the beneficial
owner of one percent (1%) or less of any class of securities issued by the
Depositor, the Master Servicer, the Securities Administrator, the Servicer,
the
Sponsor, any originator or any Affiliate thereof, as the case may be.
When
used
with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01(B) of the Securities and Exchange Commission’s Regulation
S-X. Independent means, when used with respect to any other Person, a Person
who
(A) is in fact independent of another specified Person and any affiliate of
such
other Person, (B) does not have any material direct or indirect financial
interest in such other Person or any affiliate of such other Person, (C) is
not
connected with such other Person or any affiliate of such other Person as an
officer, employee, promoter, underwriter, Securities Administrator, partner,
director or Person performing similar functions and (D) is not a member of
the
immediate family of a Person defined in clause (B) or (C) above.
Initial
Certificate Principal Balance:
With
respect to any Certificate, the Certificate Principal Balance of such
Certificate or any predecessor Certificate on the Closing Date.
Insurance
Policy:
With
respect to any Mortgage Loan included in the Trust Fund, any insurance policy,
including all riders and endorsements thereto in effect with respect to such
Mortgage Loan, including any replacement policy or policies for any Insurance
Policies.
Insurance
Proceeds:
Proceeds paid in respect of the Mortgage Loans pursuant to any Insurance Policy
or any other insurance policy covering a Mortgage Loan, to the extent such
proceeds are payable to the mortgagee under the Mortgage, the Servicer or the
trustee under the deed of trust and are not applied to the restoration of the
related Mortgaged Property or released to the Mortgagor in accordance with
the
servicing standard set forth in the Servicing Agreement, other than any amount
included in such Insurance Proceeds in respect of Insured Expenses.
Insured
Expenses:
Expenses covered by any Insurance Policy with respect to the Mortgage
Loans.
Interest
Carry Forward Amount:
With
respect to any Class of Certificates (other than the Class X, Class P and Class
R Certificates) and any Distribution Date, the amount, if any, by which the
Interest Distribution Amount for that Class of Certificates for the immediately
preceding Distribution Date exceeded the actual amount distributed on such
Class
in respect of interest on the immediately preceding Distribution Date, together
with any Interest Carry Forward Amount with respect to such Class remaining
unpaid from the previous Distribution Date.
Interest
Determination Date:
Shall
mean the second LIBOR Business Day preceding the commencement of each Accrual
Period.
Interest
Distribution Amount:
With
respect to any Class of Certificates (other than the Class P Certificates and
Class R Certificates) and any Distribution Date, an amount equal to the interest
accrued during the related Accrual Period at the applicable Pass-Through Rate
on
the Certificate Principal Balance (or Certificate Notional Balance) of such
Certificate immediately prior to such Distribution Date less such Certificate’s
share of any Net Interest Shortfall and the interest portion of any Realized
Losses on the Mortgage Loans allocated to such Certificate pursuant to
Section 1.02. The Interest Distribution Amount with respect to each Class
of Certificates (other than the Class A-1 Certificates) is calculated on the
basis of a 360-day year consisting of twelve 30-day months. The Interest
Distribution Amount with respect to the Class A-1 Certificates is calculated
on
an actual/360 basis. No Interest Distribution Amount will be payable with
respect to any Class of Certificates after the Distribution Date on which the
outstanding Certificate Principal Balance (or Certificate Notional Balance)
of
such Certificate has been reduced to zero.
Interest
Remittance Amount:
With
respect to any Distribution Date, that portion of the Available Distribution
Amount for such Distribution Date generally equal to (i) the sum, without
duplication, of (a) all scheduled interest during the related Due Period with
respect to the Mortgage Loans less the Servicing Fee, the Master Servicing
Fee,
the Credit Risk Management Fee and the PMI Insurer Fee, if applicable, (b)
all
Advances relating to interest with respect to the Mortgage Loans made on or
prior to the related Remittance Date, (c) all Compensating Interest with respect
to the Mortgage Loans and required to be remitted by the Servicer pursuant
to
the Servicing Agreement or the Master Servicer pursuant to this Agreement with
respect to such Distribution Date, (d) Liquidation Proceeds and Subsequent
Recoveries with respect to the Mortgage Loans collected during the related
Prepayment Period (to the extent such Liquidation Proceeds and Subsequent
Recoveries relate to interest), (e) all amounts relating to interest with
respect to each Mortgage Loan repurchased by the Sponsor pursuant to Sections
2.02 and 2.03 and (f) all amounts in respect of interest paid by the Master
Servicer pursuant to Section 10.01 to the extent remitted by the Master
Servicer to the Distribution Account pursuant to this Agreement and minus (ii)
all amounts required to be reimbursed by the Trust pursuant to Section 3.32
or as otherwise set forth in this Agreement, the Servicing Agreement or the
Custodial Agreement.
Interest
Shortfall:
With
respect to any Distribution Date, the aggregate shortfall, if any, in
collections of interest (adjusted to the related Net Mortgage Rates) on Mortgage
Loans resulting from (a) Principal Prepayments in full received during the
related Prepayment Period, (b) partial Principal Prepayments received during
the
related Prepayment Period to the extent applied prior to the Due Date in the
month of the Distribution Date and (c) interest payments on certain of the
Mortgage Loans being limited pursuant to the provisions of the Relief
Act.
Last
Scheduled Distribution Date:
The
Distribution Date in June 2036.
Latest
Possible Maturity Date:
The
second Distribution Date following the final scheduled maturity date of the
Mortgage Loan in the Trust Fund having the latest scheduled maturity date as
of
the Cut-off Date. For purposes of the Treasury Regulations under Code
Section 860A through 860G, the latest possible maturity date of each
regular interest issued by REMIC I and REMIC II shall be the Latest Possible
Maturity Date.
LIBOR
Business Day:
Shall
mean any day other than a Saturday or a Sunday or a day on which banking
institutions in the State of New York or in the city of London, England are
required or authorized by law to be closed.
LIBOR
Determination Date:
The
second LIBOR Business Day before the first day of the related Accrual
Period.
Liquidated
Loan:
With
respect to any Distribution Date, a defaulted Mortgage Loan that has been
liquidated through deed-in-lieu of foreclosure, foreclosure sale, trustee’s sale
or other realization as provided by applicable law governing the real property
subject to the related Mortgage and any security agreements and as to which
the
Servicer has certified in the related Prepayment Period in writing to the
Securities Administrator that it has made a Final Recovery
Determination.
Liquidation
Principal:
The
principal portion of Liquidation Proceeds received on a Mortgage Loan that
became a Liquidated Mortgage Loan, but not in excess of the Stated Principal
Balance of that Mortgage Loan, during the calendar month preceding the month
of
the Distribution Date.
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-to-Value
Ratio:
The
fraction, expressed as a percentage, the numerator of which is the original
principal balance of the Mortgage Loan and the denominator of which is the
Appraised Value of the related Mortgaged Property.
Majority
Class X Certificateholder:
The
Holder of a 50.01% or greater Percentage Interest in the Class X
Certificates.
Marker
Rate:
With
respect to the Class X Interest 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 Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC
I
Regular Interest LT-M3 and REMIC I Regular Interest LT-ZZ, with the rate on
each
such REMIC I Regular Interest subject to a cap equal to the Pass-Through Rate
for the Corresponding Certificate for the purpose of this calculation; and
with
the rate on REMIC I Regular Interest LT-ZZ subject to a cap of 0.00% per annum
for the purpose of this calculation; provided, however, that for this purpose,
the calculation of the Uncertificated REMIC I Pass-Through Rate and the related
cap with respect to REMIC I Regular Xxxxxxxx XX-X0 shall be multiplied by a
fraction, the numerator of which is the actual number of days in the Accrual
Period and the denominator of which is 30.
Master
Servicer:
As of
the Closing Date, Xxxxx Fargo Bank, N.A. and thereafter, its respective
successors in interest who meet the qualifications of this Agreement. The Master
Servicer and the Securities Administrator shall at all times be the same Person
or Affiliates.
Master
Servicer Default:
One or
more of the events described in Section 8.01(b).
Master
Servicing Fee:
With
respect to each Mortgage Loan and for any calendar month, an amount equal to
one
twelfth of the product of the Master Servicing Fee Rate multiplied by the Stated
Principal Balance of the Mortgage Loans as of the Due Date in the preceding
calendar month.
Master
Servicing Fee Rate:
0.0050%
per annum.
Master
Servicing Compensation:
The
Master Servicing Fee plus all income and gain realized from any investment
of
funds in the Distribution Account.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
Mezzanine
Certificates:
The
Class M-1, Class M-2, Class M-3 and Class M-4.
MIN:
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as the mortgagee of such Mortgage
Loan,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
Monthly
Statement:
The
statement delivered to the Certificateholders pursuant to
Section 5.07.
Moody’s:
Xxxxx’x
Investors Service, Inc. or its successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument creating a first lien on or first
priority ownership interest in an estate in fee simple in real property securing
a Mortgage Note.
Mortgage
File:
The
Mortgage Loan Documents pertaining to a particular Mortgage Loan and any
additional documents delivered to the Trustee or the Custodian on behalf of
the
Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage
Loan Documents:
As
defined in Section 2.01.
Mortgage
Loans:
Such of
the Mortgage Loans transferred and assigned to the Trustee pursuant to the
provisions hereof, as from time to time are held as a part of the Trust Fund
(including any REO Property), the mortgage loans so held being identified in
the
Mortgage Loan Schedule, notwithstanding foreclosure or other acquisition of
title of the related Mortgaged Property.
Mortgage
Loan Purchase Agreement:
The
Mortgage Loan Purchase Agreement dated as of August 30, 2006, between the
Sponsor, as seller and the Depositor, as purchaser, a form of which is attached
hereto as Exhibit
C.
Mortgage
Loan Purchase Price:
The
price, calculated as set forth in Section 10.01, to be paid in connection
with the purchase of the Mortgage Loans pursuant to
Section 10.01.
Mortgage
Loan Schedule:
The
list of Mortgage Loans (as from time to time amended by the Servicer to reflect
the deletion of Deleted Mortgage Loans and the addition of Replacement Mortgage
Loans pursuant to the provisions of this Agreement) transferred to the Trustee
as part of the Trust Fund and from time to time subject to this Agreement,
the
initial Mortgage Loan Schedule being attached hereto as Exhibit
B,
setting
forth the following information with respect to each Mortgage Loan:
(i) the
Mortgage Loan identifying number;
(ii) the
Mortgage Rate in effect as of the Cut-off Date;
(iii) the
Servicing Fee Rate;
(iv) the
Net
Mortgage Rate in effect as of the Cut-off Date;
(v) the
maturity date;
(vi) the
original principal balance;
(vii) the
Cut-off Date Principal Balance;
(viii) the
original term;
(ix) the
remaining term;
(x) the
property type;
(xi) the
product type (e.g., 2/28, 15 year fixed, 30 year fixed, 15/30 balloon,
etc.);
(xii) with
respect to each MOM Loan, the related MIN;
(xiii) the
Custodian;
(xiv) a
code
indicating whether the Mortgage Loan is subject to a Prepayment Charge, the
term
of such Prepayment Charge and the amount of such Prepayment Charge;
(xv) the
Servicer; and
(xvi) whether
the Mortgage Loan is a Covered Mortgage Loan; and
(xvii) the
PMI
Insurer Fee Rate, if applicable.
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:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note. With respect to each Mortgage Loan that becomes an REO Property,
as of any date of determination, the annual rate determined in accordance with
the immediately preceding sentence as of the date such Mortgage Loan became
an
REO Property.
Mortgaged
Property:
The
underlying property securing a Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Interest Shortfalls:
With
respect to any Distribution, Interest Shortfalls net of payments by the Servicer
or the Master Servicer in respect of Compensating Interest.
Net
Monthly Excess Cashflow:
With
respect to any Distribution Date, the sum of (a) any Overcollateralization
Reduction Amount and (b) the excess of (x) the Available Distribution Amount
for
such Distribution Date over (y) the sum for such Distribution Date of (A) the
aggregate amount of Senior Interest Distribution Amounts payable to the Senior
Certificates and the Interest Distribution Amounts payable to the Mezzanine
Certificates and (B) the Principal Funds.
Net
Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the related
Mortgage Rate less the sum of (i) the Servicing Fee Rate, (ii) the Credit Risk
Management Fee Rate, (iii) the Master Servicing Fee Rate and (iv) the PMI
Insurer Fee Rate.
Net
WAC Rate Cap:
With
respect to the Senior Certificates and the Mezzanine Certificates, the weighted
average of the Net Mortgage Rates of the Mortgage Loans, weighted based on
their
Stated Principal Balances as of the first day of the calendar month preceding
the month in which the Distribution Date occurs; provided that the Net WAC
Rate
Cap with respect to the Class A-1 Certificates shall be multiplied by a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the Accrual Period.
For
federal income tax purposes, the Net WAC Rate Cap, with respect to any
Distribution Date, shall be expressed as the weighted average of the
Uncertificated REMIC I Pass-Through Rates on each REMIC I Regular
Interest (other than REMIC I Regular Interest LT-P) weighted on the basis of
the
Uncertificated Principal Balance of such REMIC I Regular
Interests.
Net
WAC Rate Carryover Amount:
With
respect to each class of Senior Certificates and the Mezzanine Certificates
and
any Distribution Date on which the related Pass-Through Rate is reduced by
the
Net WAC Rate Cap, an amount equal to the sum of (i) the excess of (x) the amount
of interest such Class would have been entitled to receive on such Distribution
Date if the Pass-Through Rate applicable to such Class would not have been
reduced by the Net WAC Rate Cap on such Distribution Date over (y) the amount
of
interest paid on such Distribution Date to such Class plus (ii) the related
Net
WAC Rate Carryover Amount for the previous Distribution Date not previously
distributed to such Class.
Net
WAC Reserve Fund:
Shall
mean the segregated non-interest bearing trust account created and maintained
by
the Securities Administrator pursuant to Section 5.11 hereof.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Nonrecoverable
Advance:
With
respect to any Mortgage Loan, any portion of an Advance or Servicing Advance
previously made or proposed to be made by the Servicer pursuant to the Servicing
Agreement or the Trustee (or such other Successor Servicer appointed by the
Trustee), that, in the good faith judgment of the Servicer or the such Successor
Servicer, will not or, in the case of a proposed Advance or Servicing Advance,
would not, be ultimately recoverable by it from the related Mortgagor, related
Liquidation Proceeds, Insurance Proceeds or otherwise.
Officer’s
Certificate:
A
certificate (i) signed by the Chairman of the Board, the Vice Chairman of the
Board, the President, a Vice President (however denominated), an Assistant
Vice
President, the Treasurer, the Secretary, or one of the assistant treasurers
or
assistant secretaries of the Depositor or the Trustee (or any other officer
customarily performing functions similar to those performed by any of the above
designated officers and also to whom, with respect to a particular matter,
such
matter is referred because of such officer’s knowledge of and familiarity with a
particular subject) or (ii), if provided for in the Servicing Agreement, signed
by an Authorized Servicer Representative, as the case may be, and delivered
to
the Depositor, the Sponsor, the Master Servicer, the Securities Administrator
and/or the Trustee, as the case may be, as required by the Servicing
Agreement.
One-Month
LIBOR:
With
respect to any Accrual Period (other than the first Accrual Period), the rate
determined by the Securities Administrator on the related Interest Determination
Date on the basis of the rate for U.S. dollar deposits for one month that
appears on Telerate Screen Page 3750 as of 11:00 a.m. (London time) on such
Interest Determination Date. If such rate does not appear on such page (or
such
other page as may replace that page on that service, or if such service is
no
longer offered, such other service for displaying One-Month LIBOR or comparable
rates as may be reasonably selected by the Securities Administrator), One-Month
LIBOR for the applicable Accrual Period will be the Reference Bank Rate. If
no
such quotations can be obtained by the Securities Administrator and no Reference
Bank Rate is available, One-Month LIBOR will be One-Month LIBOR applicable
to
the preceding Accrual Period. The establishment of One-Month LIBOR on each
Interest Determination Date by the Securities Administrator and the Securities
Administrator’s calculation of the rate of interest applicable to the Class A-1
Certificates for the related Accrual Period shall, in the absence of manifest
error, be final and binding. With respect to the first Accrual period, One-Month
LIBOR shall equal 5.350% per annum.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for the Sponsor, the Master
Servicer, the Depositor or the Servicer, reasonably acceptable to each addressee
of such opinion; provided that with respect to Section 2.05, 7.05 or 11.01,
or the interpretation or application of the REMIC Provisions, such counsel
must
(i) in fact be independent of the Sponsor, the Master Servicer Depositor and
the
Servicer, (ii) not have any direct financial interest in the Sponsor, the
Depositor, the Master Servicer or the Servicer or in any affiliate of any of
them, and (iii) not be connected with the Sponsor, the Depositor, the Master
Servicer or the Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Optional
Termination:
The
termination of the Trust Fund created hereunder as a result of the purchase
of
all of the Mortgage Loans and any REO Property, as described in
Section 10.01.
Optional
Termination Date:
The
first Distribution Date on which the Master Servicer may purchase, at its
option, the Mortgage Loans and REO Properties, as described in
Section 10.01.
OTS:
The
Office of Thrift Supervision or any successor thereto.
OTS
Method:
The
method used by OTS to calculate delinquencies.
Outstanding:
With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(a) Certificates
theretofore canceled by the Securities Administrator or delivered to the
Securities Administrator for cancellation; and
(b) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Securities Administrator pursuant to this
Agreement.
Outstanding
Mortgage Loan:
As of
any date of determination, a Mortgage Loan with a Stated Principal Balance
greater than zero that was not the subject of a Principal Prepayment in full,
and that did not become a Liquidated Loan, prior to the end of the related
Prepayment Period.
Overcollateralization
Amount:
With
respect to any Distribution Date, the excess, if any, of (a) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period over (b) the aggregate Certificate Principal Balance of the Senior
Certificates and the Mezzanine Certificates on such Distribution Date (after
taking into account the payment of 100% of the Principal Funds on such
Distribution Date).
Overcollateralization
Increase Amount:
With
respect to any Distribution Date, the excess, if any, of (a) the Required
Overcollateralization Amount over (b) the Overcollateralization Amount on such
Distribution Date.
Overcollateralization
Reduction Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Funds for
such
Distribution Date and (y) the excess, if any, of (i) the Overcollateralization
Amount for such Distribution Date over (ii) the Required Overcollateralization
Amount for such Distribution Date.
Ownership
Interest:
As to
any Certificate, any ownership interest in such Certificate including any
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial.
Pass-Through
Rate:
With
respect to each Class of Certificates, the applicable Pass-Through Rate for
each
such Class as set forth in the Preliminary Statement, except with respect to
the
Class X Certificates, 100% of the interest distributable to the Class X
Interest, expressed as a per annum rate.
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.
PCAOB:
Shall
mean the Public Company Accounting Oversight Board.
Percentage
Interest:
With
respect to any Certificate of a specified Class, the Percentage Interest set
forth on the face thereof or the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of such Class.
Permitted
Investments:
At any
time, any one or more of the following obligations and securities:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency thereof, provided
such obligations are unconditionally backed by the full faith and credit of
the
United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each Rating
Agency, as evidenced by a signed writing delivered by each Rating
Agency;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency that rates such securities,
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) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities (including the Trustee or the Master
Servicer in its commercial banking capacity), provided that the commercial
paper
and/or long term unsecured debt obligations of such depository institution
or
trust company are then rated one of the two highest long-term and the highest
short-term ratings of each such Rating Agency for such securities, or such
lower
ratings as will not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any Rating Agency, as evidenced by a signed
writing delivered by each Rating Agency;
(v) 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;
(vi) 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;
(vii) 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;
(viii) 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;
(ix) units
of
money market funds registered under the Investment Company Act of 1940 including
funds managed or advised by the Trustee, the Master Servicer or an affiliate
of
either, having a rating by S&P of AAAm-G or AAAm, if rated by Moody’s, rated
Aaa, Aa1 or Aa2, and if rated by Fitch, F1, F2 or F3;
(x) short
term investment funds sponsored by any trust company or banking association
incorporated under the laws of the United States or any state thereof (including
any such fund managed or advised by the Trustee, the Master Servicer or any
affiliate thereof) which on the date of acquisition has been rated by each
Rating Agency in their respective highest applicable rating category or such
lower rating as will not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by each Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency; and
(xi) 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 Xxxxxxx 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.
PMI
Insurer:
PMI
Mortgage
Insurance
Company,
an
Arizona corporation, or its successor in interest.
PMI
Insurer Fee:
The
premium payable to the PMI Insurer on each Distribution Date pursuant to Section
3.32, which amount shall equal one twelfth of the product of (i) the PMI Insurer
Fee Rate (without regard to the words “per annum”), multiplied by (ii) the
aggregate Stated Principal Balance of each Covered Mortgage Loan as of the
first
day of the related Due Period (after giving effect to scheduled payments of
principal due during the Due Period relating to the previous Distribution Date,
to the extent received or advanced) plus any applicable premium taxes on each
Covered Mortgage Loan located in West Virginia and Kentucky.
PMI
Insurer Fee Rate:
With
respect to any Distribution Date and any Mortgage Loan covered by the PMI
Policy, a rate ranging between 0.204% per annum and 2.461% per
annum.
PMI
Policy:
The
primary mortgage insurance policy (policy reference number: # 22699-4) with
respect to the related PMI Mortgage Loans, including all endorsements thereto
dated the Closing Date, issued by the PMI Insurer.
PMI
Threshold Percentage:
For
purposes of Regulation AB, with respect to each Distribution Date, a percentage
equivalent of a fraction, the numerator of which is (x) the sum of the product
of (i) the Stated Principal Balance of the Covered Mortgage Loans and (ii)
the
related Coverage Percentage for each Covered Mortgae Loan and the denominator
of
which is (y) the aggregate Stated Principal Balance of the Mortgage Loans,
in
each case, as of the last day of the related Due Period.
Prepayment
Assumption:
The
assumed rate of prepayment, as described in the Prospectus Supplement relating
to each Class of Publicly Offered Certificates.
Prepayment
Charge:
With
respect to any Principal Prepayment, any prepayment premium, penalty or charge
payable by a Mortgagor in connection with any Principal Prepayment on a Mortgage
Loan pursuant to the terms of the related Mortgage Note (other than any Servicer
Prepayment Charge Payment Amount) as shown on the Prepayment Charge
Schedule.
Prepayment
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 Servicing Fee, (b) the
Credit Risk Management Fee, (c) the Master Servicing Fee Rate and (d) the PMI
Insurer Fee Rate, if any.
Prepayment
Period:
With
respect to any Distribution Date, the calendar month immediately preceding
the
calendar month in which such Distribution Date occurs.
Principal
Distribution Amount:
With
respect to each Distribution Date, the sum of (i) Principal Funds for such
Distribution Date, plus (ii) the Extra Principal Distribution Amount for such
Distribution Date minus
(iii)
the amount of any Overcollateralization Reduction Amount for such Distribution
Date. In no event will the Principal Distribution Amount with respect to any
Distribution Date be (x) less than zero or (y) greater than the then outstanding
aggregate Certificate Principal Balance of the Publicly Offered
Certificates.
Principal
Funds:
With
respect to any Distribution Date, (i) the sum, without duplication, of (a)
all
scheduled principal collected during the related Due Period, (b) all Advances
relating to principal made on or prior to the Remittance Date or, with respect
to the Trustee (in its capacity as Successor Servicer) on the Distribution
Date,
(c) Principal Prepayments exclusive of prepayment charges or penalties collected
during the related Prepayment Period, (iii) the Stated Principal Balance of
each
Mortgage Loan that was repurchased by the Sponsor pursuant to
Sections 2.02, 2.03 and 3.24, (d) the aggregate of all Substitution
Adjustment Amounts for the related Determination Date in connection with the
substitution of Mortgage Loans pursuant to Section 2.03(b), (e) amounts in
respect of principal paid by the Master Servicer pursuant to Section 10.01,
(f) all Liquidation Proceeds and Subsequent Recoveries collected during the
related Prepayment Period (to the extent such Liquidation Proceeds and
Subsequent Recoveries relate to principal), in each case to the extent remitted
by the Servicer to the Distribution Account pursuant to the Servicing Agreement
and (g) all Subsequent Recoveries minus (ii) all amounts required to be
reimbursed by the Trust Fund pursuant to Section 3.32 or as otherwise set
forth in this Agreement or the Custodial Agreement to the extent not reimbursed
from the Interest Remittance Amount.
Private
Certificate:
Each of
the Class X, Class P and Class R Certificates.
Prospectus
Supplement:
The
Prospectus Supplement dated August 29, 2006 relating to the offering of the
Publicly Offered Certificates.
Publicly
Offered Certificates:
The
Class A-1, Class A-2, Class A-3, Class A-4, Class X-0, Xxxxx X-0, Class M-1,
Class M-2, Class M-3 and Class M-4 Certificates.
PUD:
A
planned unit development.
Purchase
Price:
With
respect to any Mortgage Loan required to be repurchased by the Sponsor pursuant
to Section 2.02, 2.03 or 3.24 hereof and as confirmed by an Officer’s
Certificate from the Sponsor 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) thirty (30) days’ accrued interest thereon at the
applicable Net Mortgage Rate, plus any portion of the Servicing Fee, Master
Servicing Fee, Servicing Advances and Advances payable to the Servicer or Master
Servicer, as applicable, with respect to such Mortgage Loan plus (iii) any
costs
and damages of the Trust Fund in connection with any violation by such Mortgage
Loan of any abusive or predatory lending law, including any expenses incurred
by
the Trustee with respect to such Mortgage Loan prior to the purchase
thereof.
Rating
Agency:
Each of
Xxxxx’x and S&P. If any such organization or its successor is no longer in
existence, “Rating Agency” shall be a nationally recognized statistical rating
organization, or other comparable Person, designated by the Depositor, notice
of
which designation shall be given to the Trustee. References herein to a given
rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized
Loss:
With
respect to each Mortgage Loan as to which a Final Recovery Determination has
been made, an amount (not less than zero) equal to (i) the Stated Principal
Balance of such Mortgage Loan as of the commencement of the calendar month
in
which the Final Recovery Determination was made, plus (ii) accrued interest
from
the Due Date as to which interest was last paid by the Mortgagor through the
end
of the calendar month in which such Final Recovery Determination was made,
calculated in the case of each calendar month during such period (A) at an
annual rate equal to the annual rate at which interest was then accruing on
such
Mortgage Loan and (B) on a principal amount equal to the Stated Principal
Balance of such Mortgage Loan as of the close of business on the Distribution
Date during such calendar month, minus (iii) the proceeds, if any, received
in
respect of such Mortgage Loan during the calendar month in which such Final
Recovery Determination was made, net of amounts that are payable therefrom
to
the Servicer pursuant to this Agreement. To the extent the Servicer receives
Subsequent Recoveries with respect to any Mortgage Loan, the amount of the
Realized Loss with respect to that Mortgage Loan will be reduced to the extent
that Subsequent Recoveries are applied to reduce the Certificate Principal
Balance of any Class of Certificates on any Distribution Date.
With
respect to any REO Property as to which a Final Recovery Determination has
been
made, an amount (not less than zero) equal to (i) the Stated Principal Balance
of the related Mortgage Loan as of the date of acquisition of such REO Property
on behalf of REMIC I, plus (ii) accrued interest from the Due Date as to which
interest was last paid by the Mortgagor in respect of the related Mortgage
Loan
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, calculated in the case of each calendar
month during such period (A) at an annual rate equal to the annual rate at
which
interest was then accruing on the related Mortgage Loan and (B) on a principal
amount equal to the Stated Principal Balance of the related Mortgage Loan as
of
the close of business on the Distribution Date during such calendar month,
minus
(iii) the aggregate of all unreimbursed Advances and Servicing
Advances.
With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation.
With
respect to each Mortgage Loan which has become the subject of a Debt Service
Reduction, the portion, if any, of the reduction in each affected Monthly
Payment attributable to a reduction in the Mortgage Rate imposed by a court
of
competent jurisdiction. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
In
addition, to the extent the Servicer receives Subsequent Recoveries with respect
to any Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such Subsequent Recoveries are
applied to reduce the Certificate Principal Balance of any Class of Certificates
on any Distribution Date.
Record
Date:
With
respect to the Certificates 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.
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 Certificate Principal Balance
of the Class A-1 Certificates for such Accrual Period, provided that at least
two such Reference Banks provide such rate. If fewer than two offered rates
appear, the Reference Bank Rate will be the arithmetic mean, rounded upwards,
if
necessary, to the nearest whole multiple of 0.03125%, of the rates quoted by
one
or more major banks in New York City, selected by the Securities Administrator,
as of 11:00 a.m., New York City time, on such date for loans in United States
dollars to leading European banks for a period of one month in amounts
approximately equal to the Certificate Principal Balance of the Class A-1
Certificates for such Accrual Period.
Reference
Banks:
Shall
mean leading banks selected by the Securities Administrator and engaged in
transactions in Eurodollar deposits in the international Eurocurrency market
(i)
with an established place of business in London, (ii) which have been designated
as such by the Securities Administrator and (iii) which are not controlling,
controlled by, or under common control with, the Depositor, the Sponsor or
the
Servicer.
Regulation
AB:
Means
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relevant
Servicing Criteria:
Means
with respect to any Servicing Function Participant, the Servicing Criteria
applicable to such party, as set forth on Exhibit
L
attached
hereto. For clarification purposes, multiple parties can have responsibility for
the same Relevant Servicing Criteria. With respect to a Servicing Function
Participant engaged by the Master Servicer, the Securities Administrator or
the
Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the
Relevant Servicing Criteria applicable to such party.
Relief
Act:
The
Servicemembers Civil Relief Act of 2003, as amended from time to time or similar
state or local laws.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
REMIC
I:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, with respect to which a REMIC election
is to be made, consisting of (i) the Mortgage Loans and all interest accruing
and principal due with respect thereto after the Cut-off Date to the extent
not
applied in computing the Cut-off Date Principal Balance thereof and all related
Prepayment Charges; (ii) the related Mortgage Files, (iii) the Custodial Account
(other than any amounts representing any Servicer Prepayment Charge Payment
Amount), the Distribution Account, the Class P Certificate Account and such
assets that are deposited therein from time to time, together with any and
all
income, proceeds and payments with respect thereto; (iv) property that secured
a
Mortgage Loan and has been acquired by foreclosure, deed in lieu of foreclosure
or otherwise; (v) the mortgagee’s rights under the Insurance Policies with
respect to the Mortgage Loans and the PMI Policy; (vi) the rights under the
Mortgage Loan Purchase Agreement, and (vii) all proceeds of the foregoing,
including proceeds of conversion, voluntary or involuntary, of any of the
foregoing into cash or other liquid property. Notwithstanding the foregoing,
however, REMIC I specifically excludes (i) all payments and other collections
of
principal and interest due on the Mortgage Loans on or before the Cut-off Date,
(ii) all Prepayment Charges payable in connection with Principal Prepayments
made before the Cut-off Date, (iii) the Net WAC Reserve Fund and (iv) the Cap
Contract.
REMIC
I 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 LT-AA minus the Marker Rate, divided by (b) 12.
REMIC
I Overcollateralization Amount:
With
respect to any date of determination, (i) 1% 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 Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular Interest
LT-M3, REMIC I Regular Interest LT-M4 and REMIC I Regular Interest LT-P, in
each
case as of such date of determination.
REMIC
I Principal Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to (a) the product of (i)
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 Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC
I
Regular Interest LT-M3 and REMIC I Regular Interest LT-M4 and the denominator
of
which is the aggregate of the Uncertificated Principal Balances of REMIC I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Interest LT-M1, REMIC I Regular Interest
LT-M2, REMIC I Regular Interest LT-M3, REMIC I Regular Interest LT-M4 and REMIC
I Regular Interest LT-ZZ.
REMIC
I Regular Interests:
REMIC I
Regular Interest LT-AA, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Interest
LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular Interest LT-M3, REMIC
I
Regular Interest LT-M4, REMIC I Regular Interest LT-ZZ and REMIC I Regular
Interest LT-P.
REMIC
I Regular Interest LT-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 LT-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 LT-A1:
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
Xxxxxxxx XX-X0 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 LT-A2:
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
Xxxxxxxx XX-X0 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 LT-A3:
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
Xxxxxxxx XX-X0 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 LT-A4:
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
Xxxxxxxx XX-X0 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 LT-A5:
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
Xxxxxxxx XX-X0 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 LT-A6:
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
Xxxxxxxx XX-X0 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 LT-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 LT-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 LT-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 LT-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 LT-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 LT-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 LT-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 LT-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 LT-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 LT-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 LT-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 LT-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 LT-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
LT-ZZ for such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-ZZ minus the REMIC I
Overcollateralization Amount, in each case for such Distribution Date, over
(ii)
Uncertificated Accrued Interest on REMIC I Regular Xxxxxxxx XX-X0, REMIC I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular Interest
LT-M3 and REMIC I Regular Interest LT-M4 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 Required Overcollateralization Amount:
1% of
the Required Overcollateralization Amount.
REMIC
II:
The
segregated pool of assets consisting of all of the REMIC I Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC II
Certificateholders pursuant to Section 2.07, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC
II Certificate:
Any
Regular Certificate or Class R Certificate.
REMIC
II Certificateholder:
The
Holder of any REMIC II Certificate.
REMIC
II Regular Interest:
Any of
the Class X Interest, Class P Interest, Class IO Interest and any “regular
interest” in REMIC II the ownership of which is represented by a Senior
Certificate or Subordinate Certificate.
REMIC
III:
The
segregated pool of assets consisting of all the Class X Interest conveyed in
trust to the Trustee, for the benefit of the Holders of the Regular Certificates
and the Class R-X Certificate (in respect of the Class R-3 Interest), pursuant
to Section 2.07 hereunder, and all amounts deposited therein, with respect
to
which a separate REMIC election is to be made.
REMIC
IV:
The
segregated pool of assets consisting of all of the Class P Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class P Certificates
and the Holders of the Class R-X Certificates (as holders of the Class R-4
Interest), pursuant to Section 2.07 hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC
V:
The
segregated pool of assets consisting of all of the Class IO Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of REMIC V Regular Interest
IO and the Holders of the Class R-X Certificates (as holders of the Class R-5
Interest), pursuant to Section 2.07, and all amounts deposited therein, with
respect to which a separate REMIC election is to be made.
REMIC
V Regular Interest IO:
An
uncertificated interest in the Trust Fund held by the Trustee, evidencing a
Regular Interest in REMIC V for purposes of the REMIC Provisions.
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, Class X Interest, Class P Interest, or a Regular
Certificate.
Remittance
Date:
Shall
mean the eighteenth (18th)
day of
the month and if such day is not a Business Day, the immediately succeeding
Business Day.
REO
Property:
A
Mortgaged Property acquired by the 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 Sponsor
for
a Deleted Mortgage Loan, which must, on the date of such substitution, as
confirmed in a request for release in accordance with the terms of the Custodial
Agreement, (i) have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in excess
of, and not less than 90% of, the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) have a fixed Mortgage Rate not less than or more than 1%
per
annum higher than the Mortgage Rate of the Deleted Mortgage Loan; (iii) have the
same or higher credit quality characteristics than that of the Deleted Mortgage
Loan; (iv) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan; (v) have a remaining term to maturity no greater than (and not
more than one year less than) that of the Deleted Mortgage Loan; (vi) 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) comply
with each representation and warranty set forth in the Mortgage Loan Purchase
Agreement; and (ix) not permit conversion of the Mortgage Rate from a fixed
rate
to a variable rate.
Reportable
Event:
Has the
meaning set forth in Section 5.12(b) of this Agreement.
Reporting
Servicer:
Shall
mean the Servicer, the Master Servicer, the Securities Administrator, the
Custodian under the Custodial Agreement, and any Servicing Function Participant
engaged by such parties.
Required
Insurance Policy:
With
respect to any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Required
Overcollateralization Amount:
With
respect to any Distribution Date prior to the Stepdown Date, 1.70% of the Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, and 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 (i) 3.40% of the Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period to the extent received or advanced, unscheduled collections
of principal received during the related Prepayment Period and after reduction
for Realized Losses incurred during the related Prepayment Period) and (ii)
0.35% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date; with respect to any Distribution Date on or after the Stepdown Date with
respect to which a Trigger Event is in effect, the Required
Overcollateralization Amount for such Distribution Date will be equal to the
Required Overcollateralization Amount for the Distribution Date immediately
preceding such Distribution Date. Notwithstanding the foregoing, on and after
any Distribution Date following the reduction of the aggregate Certificate
Principal Balance of the Publicly Offered Certificates to zero, the Required
Overcollateralization Amount shall be zero.
Required
Overcollateralization Percentage:
With
respect to any Distribution Date, a percentage equal to (a) the Required
Overcollateralization Amount divided by (b) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period, and after reduction
for
Realized Losses incurred on the Mortgage Loans during the related Prepayment
Period).
Residual
Certificates:
The
Class R Certificates and the Class R-X Certificates.
Responsible
Officer:
With
respect to the Trustee and the Securities Administrator, any Vice President,
any
Assistant Vice President, the Secretary, any Assistant Secretary, any Trust
Officer, any other officer customarily performing functions similar to those
performed by any of the above designated officers or other officers of the
Trustee or the Securities Administrator specified by the Trustee or the
Securities Administrator, as the case may be, having direct responsibility
over
this Agreement and customarily performing functions similar to those performed
by any one of the designated officers, as to whom, with respect to a particular
matter, such matter is referred because of such officer’s knowledge of and
familiarity with the particular subject.
Responsible
Party:
The
party indicated on Exhibit N as the entity primarily responsible for reporting
the information set forth therein to the Securities Administrator pursuant
to
Section 5.12.
S&P:
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. or its
successor in interest.
Xxxxxxxx-Xxxxx
Act:
Means
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
A
written certification signed by an officer of the Master Servicer that complies
with (i) the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time, and
(ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002
is
amended, (b) the Rules referred to in clause (ii) are modified or superseded
by
any subsequent statement, rule or regulation of the Commission or any statement
of a division thereof, or (c) any future releases, rules and regulations are
published by the Commission from time to time pursuant to the Xxxxxxxx-Xxxxx
Act
of 2002, which in any such case affects the form or substance of the required
certification and results in the required certification being, in the reasonable
judgment of the Master Servicer, materially more onerous than the form of the
required certification as of the Closing Date, the Xxxxxxxx-Xxxxx Certification
shall be as agreed to by the Master Servicer, the Depositor and the Seller
following a negotiation in good faith to determine how to comply with any such
new requirements.
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, and the rules and regulations promulgated
thereunder.
Securities
Administrator:
As of
the Closing Date, Xxxxx Fargo Bank, N.A. and thereafter, its respective
successors in interest that meet the qualifications of this Agreement. The
Securities Administrator and the Master Servicer shall at all times be the
same
Person or Affiliates.
Senior
Certificates:
The
Class A-1, Class A-2, Class A-3, Class A-4, Class A-5 and Class A-6
Certificates.
Senior
Interest Distribution Amount:
With
respect to any Distribution Date and any Class of Senior Certificates will
be
equal to the Interest Distribution Amount for such Distribution Date for such
Class and the Interest Carry Forward Amount, if any, for such Distribution
Date
for such Class.
Senior
Principal Distribution Amount:
With
respect to any Distribution Date which occurs (i) prior to the Stepdown Date
or
on or after the Stepdown Date if a Trigger Event is in effect, the Principal
Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event
is
not in effect for that Distribution Date, the lesser of:
| · |
the
Principal Distribution Amount for that Distribution Date;
and
|
| · |
the
excess, if any, of (A) the aggregate Certificate Principal Balance
of the
Senior Certificates immediately prior to that Distribution Date over
(B)
the positive difference between (i) the aggregate Stated Principal
Balance
of the Mortgage Loans as of the last day of the related Due Period
(after
reduction for Realized Losses incurred during the related Prepayment
Period) and (ii) the product of (x) the aggregate Stated Principal
Balance
of the Mortgage Loans as of the last day of the related Due Period
(after
reduction for Realized Losses incurred during the related Prepayment
Period) and (y) the sum of 18.50% and the Required Overcollateralization
Percentage.
|
Servicer:
Shall
mean Xxxxx Fargo Bank, N.A. or any successor thereto appointed hereunder in
connection with the servicing and administration of the Mortgage
Loans.
Servicer
Default:
As
defined in Section 8.01.
Servicer
Prepayment Charge Payment Amount:
The
amount payable by the Servicer in respect of any waived Prepayment Charges
pursuant to the Servicing Agreement.
Service(s)(ing):
Means,
in accordance with Regulation AB, the act of servicing and administering the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer’ set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in 1108 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicing
Advances:
As
defined in the Servicing Agreement.
Servicing
Agreement:
The
Seller’s Warranties and Servicing Agreement, dated as of May 1, 2006, between
the Sponsor and the Servicer (as modified pursuant to the Assignment
Agreement).
Servicing
Criteria:
Means
the criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may be amended from time to time.
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 per Mortgage Loan.
Servicing
Function Participant:
Means
any Subservicer or Subcontractor of the Servicer, the Master Servicer and the
Securities Administrator, the Custodian. For purposes of Section 5.12(d), such
term also shall include the Servicer, the Master Servicer, the Securities
Administrator and the Custodian.
Servicing
Officer:
Any
officer of the Servicer involved in, or responsible for, the administration
and
the servicing of Mortgage Loans, whose name and specimen signature appear on
a
list of Servicing Officers furnished to the Master Servicer, the Securities
Administrator the Trustee and the Depositor on the Closing Date, as such list
may from time to time be amended.
Sponsor:
Nomura
Credit & Capital, Inc., a Delaware corporation, and its successors and
assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
Startup
Day:
The
Startup Day for REMIC I and REMIC II formed hereunder shall be the Closing
Date.
The Startup Day for REMIC III, REMIC IV and REMIC V shall be
[_________________].
Stated
Principal Balance:
With
respect to any Mortgage Loan or related REO Property and any Distribution Date,
the Cut-off Date Principal Balance thereof minus the sum of (i) the principal
portion of the Scheduled Payments due with respect to such Mortgage Loan during
each Due Period ending prior to such Distribution Date (and irrespective of
any
delinquency in their payment), (ii) all Principal Prepayments with respect
to
such Mortgage Loan received prior to or during the related Prepayment Period,
and all Liquidation Proceeds to the extent applied by the Servicer as recoveries
of principal in accordance with the Servicing Agreement with respect to such
Mortgage Loan, that were received by the Servicer as of the close of business
on
the last day of the Prepayment Period related to such Distribution Date and
(iii) any Realized Losses on such Mortgage Loan incurred during the related
Prepayment Period. The Stated Principal Balance of a Liquidated Loan equals
zero.
Stepdown
Date:
The
later to occur of (x) the Distribution Date in September 2009 and (y) the first
Distribution Date on which the Credit Enhancement Percentage of the Senior
Certificates (calculated for this purpose only after taking into account
distributions of principal on the Mortgage Loans, but prior to any distribution
of the Principal Distribution Amount to the holders of the Certificates then
entitled to distributions of principal on the Distribution Date) is greater
than
or equal to approximately 21.90%.
Subcontractor:
Shall
mean any vendor, subcontractor or other Person who is not responsible for the
overall servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of the Servicer (or a Subservicer of the Servicer),
the Master Servicer, the Trustee, the Custodian or the Securities Administrator
and such subcontractor is determined by the Person engaging the subcontractor
to
be “participating in the servicing function” within the meaning of Item 1122 of
Regulation AB.
Subsequent
Recoveries:
Shall
mean all amounts in respect of principal received by the Servicer on a Mortgage
Loan for which a Realized Loss was previously incurred.
Subservicer:
Shall
mean any Person who is identified in Item 1122(d) of Regulation AB that services
the Mortgage Loans on behalf of the Servicer or is engaged by the Master
Servicer, the Securities Administrator or the Custodian, and is responsible
for
the performance (whether directly or through subservicers or Subcontractors)
of
a substantial portion of the material servicing functions required to be
performed by such Person under this Agreement or any subservicing
agreement.
Subservicing
Agreement:
Any
agreement entered into between the Servicer and a Subservicer with respect
to
the subservicing of any Mortgage Loan subject to the Servicing Agreement by
such
Subservicer.
Substitution
Adjustment Amount:
The
meaning ascribed to such term pursuant to Section 2.03(d).
Successor
Servicer:
Any
successor to the Servicer appointed pursuant to Section 8.02 of this
Agreement after the occurrence of a Servicer Default or upon the resignation
of
the Servicer pursuant to the Servicing Agreement.
Tax
Matters Person:
The
person designated as “tax matters person” in the manner provided under Treasury
regulation § 1.860F-4(d) and temporary Treasury regulation
§ 301.6231(a)(7)-1T. The holder of the greatest Percentage Interest in a
Class of Residual Certificates shall be the Tax Matters Person for the related
REMIC. The Securities Administrator, or any successor thereto or assignee
thereof shall serve as tax administrator hereunder and as agent for the related
Tax Matters Person.
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 (x) the
percentage obtained by dividing (i) the aggregate Stated Principal Balance
of
Mortgage Loans delinquent sixty (60) days or more (including Mortgage Loans
in
foreclosure or discharged in bankruptcy or any REO Property) by (ii) the
aggregate Stated Principal Balance of the Mortgage Loans, in each case, as
of
the last day of the previous calendar month, exceeds 31.96% of the Credit
Enhancement Percentage of the Senior Certificates for the prior Distribution
Date, or (y) the aggregate amount of Realized Losses on the Mortgage Loans
incurred since the Cut-off Date through the last day of the related Due Period
divided by the aggregate Stated Principal Balance of the Mortgage Loans as
of
the Cut-off Date exceeds the applicable percentages set forth below with respect
to such Distribution Date:
|
Distribution
Date
|
Percentage
|
|
September
2009 to August 2010
|
0.44%
|
|
September
2010 to August 2011
|
1.10%
|
|
September
2011 to August 2012
|
1.90%
|
|
September
2012 and thereafter
|
2.20%
|
Trust
Fund:
Collectively, the assets of REMIC I, REMIC II, REMIC III, REMIC IV, REMIC V,
the
Net WAC Reserve Fund and the Cap Contract.
Trustee:
HSBC
Bank USA, National Association, a national banking association, not in its
individual capacity, but solely in its capacity as trustee for the benefit
of
the Certificateholders under this Agreement, and any successor thereto, and
any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
Uncertificated
Accrued Interest:
With
respect to each Uncertificated REMIC Regular Interest on each Distribution
Date,
an amount equal to one month’s interest at the related Uncertificated
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:
A per
annum rate equal to the average of the Net Mortgage Rates of the Mortgage Loans
as of the first day of the related Due Period, weighted on the basis of the
Stated Principal Balances as of the first day of the related Due Period. REMIC
I
Regular Interest LT-P will not accrue interest.
Uncertificated
REMIC Regular Interest:
The
REMIC I Regular Interests.
Voting
Rights:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions hereunder. Voting Rights
shall
be allocated (i) 97% 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 Distribution Amount for
the
Senior Certificates, Mezzanine Certificates and Class X Certificates for any
Distribution Date, (1) the aggregate amount of any Net Interest Shortfalls
in
respect of the Mortgage Loans for any Distribution Date shall first reduce
the
Interest Distribution Amount payable to the Class M-3 Certificates, second,
reduce the Interest Distribution Amount payable to the Class M-2 Certificates,
third, reduce the Interest Distribution Amount payable to the Class M-1
Certificates, and fourth, reduce the Interest Distribution Amount payable to
the
Senior Certificates, on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
or
Certificate Notional Balance, as applicable of each such Certificate and (2)
the
aggregate amount of any Realized Losses on the Mortgage Loans allocated to
the
Mezzanine Certificates and Net WAC Rate Carryover Amount paid to the Senior
Certificates and the Mezzanine Certificates incurred for any Distribution Date
shall be allocated to the Class X Certificates based on, and to the extent
of,
one month’s interest at the then applicable Pass-Through Rate on the Certificate
Notional Balance thereof on any Distribution Date.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC I Regular Interests for any Distribution Date, the aggregate amount
of any Net Interest Shortfalls incurred in respect of the Mortgage Loans for
any
Distribution Date shall be allocated among
REMIC I Regular Interest LT-AA, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular
Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0,
REMIC
I
Regular Xxxxxxxx XX-X0,
REMIC I
Regular Xxxxxxxx XX-X0, REMIC I Regular Interest LT-M1, REMIC I Regular Interest
LT-M2, REMIC I Regular Interest LT-M3, REMIC I Regular Interest LT-M4 and REMIC
I Regular Interest LT-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.
ARTICLE
II
CONVEYANCE
OF TRUST FUND
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Conveyance
of Trust Fund.
The
Sponsor hereby sells, transfers, assigns, sets over and otherwise conveys to
the
Depositor, without recourse, all the right, title and interest of the Sponsor
in
and to the assets in the Trust Fund.
The
Sponsor 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. The Depositor herewith
delivers to the Trustee or its Custodian an executed copy of the PMI Policy,
and
the Trustee or its Custodian, as applicable, acknowledges receipt of the same
on
behalf of the Certificateholders.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, to the extent of the Mortgage Loans sold under the Mortgage
Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall
be entitled to exercise all rights of the Depositor under the Mortgage Loan
Purchase Agreement as if, for such purpose, it were the Depositor. The foregoing
sale, transfer, assignment, set-over, deposit and conveyance does not and is
not
intended to result in creation or assumption by the Trustee of any obligation
of
the Depositor, the Sponsor or any other Person in connection with the Mortgage
Loans or any other agreement or instrument relating thereto except as
specifically set forth herein.
In
connection with such sale, the Depositor does hereby deliver to, and deposit
with the Custodian pursuant to the Custodial Agreement the documents with
respect to each Mortgage Loan as described under Section 2 of the Custodial
Agreement (the “Mortgage Loan Documents”). In connection with such delivery and
as further described in the Custodial Agreement, the Custodian will be required
to review such Mortgage Loan Documents and deliver to the Trustee, the
Depositor, the Servicer and the Sponsor certifications (in the forms attached
to
the Custodial Agreement) with respect to such review with exceptions noted
thereon. In addition, under the Custodial Agreement the Depositor will be
required to cure certain defects with respect to the Mortgage Loan Documents
for
the Mortgage Loans after the delivery thereof by the Depositor to the Custodian
as more particularly set forth therein.
Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge that
the functions of the Trustee with respect to the custody, acceptance, inspection
and release of the Mortgage Files, including but not limited to certain
insurance policies and documents contemplated by this Agreement, and preparation
and delivery of the certifications shall be performed by the Custodian pursuant
to the terms and conditions of the Custodial Agreement.
The
Depositor shall deliver or cause to be delivered to the Servicer copies of
all
trailing documents required to be included in the related Mortgage File at
the
same time the originals or certified copies thereof are delivered to the
Custodian, such documents including the mortgagee policy of title insurance
and
any Mortgage Loan Documents upon return from the recording office. The Servicer
shall not be responsible for any custodial fees or other costs incurred in
obtaining such documents and the Depositor shall cause the Servicer to be
reimbursed for any such costs the Servicer may incur in connection with
performing its obligations under the Servicing Agreement.
The
Mortgage Loans permitted by the terms of this Agreement to be included in the
Trust Fund are limited to (i) Mortgage Loans (which the Depositor acquired
pursuant to the Mortgage Loan Purchase Agreement, which contains, among other
representations and warranties, a representation and warranty of the Sponsor
that no Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey
Home Ownership Act effective November 27, 2003, as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004) as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C) or as defined in the Indiana Home Loan Practices
Act,
effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through 24-9-9) and
(ii) Qualified Substitute Mortgage Loans (which, by definition as set forth
herein and referred to in the Mortgage Loan Purchase Agreement, are required
to
conform to, among other representations and warranties, the representation
and
warranty of the Sponsor that no Qualified Substitute Mortgage Loan is a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003, as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, as defined in the Massachusetts Predatory Home Loan
Practices Act, effective November 7, 2004 (Mass. Xxx. Laws Ch. 183C) or as
defined in the Indiana Home Loan Practices Act, effective January 1, 2005 (Ind.
Code Xxx. Sections 24-9-1 through 24-9-9). The Depositor and the Trustee on
behalf of the Trust Fund understand and agree that it is not intended that
any
mortgage loan be included in the Trust Fund that is a “High-Cost Home Loan” as
defined in the New Jersey Home Ownership Act effective November 27, 2003, as
defined in the New Mexico Home Loan Protection Act effective January 1, 2004,
as
defined in the Massachusetts Predatory Home Loan Practices Act, effective
November 7, 2004 (Mass. Xxx. Laws Ch. 183C) or as defined in the Indiana Home
Loan Practices Act, effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1
through 24-9-9).
Section
2.02 Acceptance
of the Mortgage Loans.
(a) Based
on
the initial trust receipt received by it from the Custodian pursuant to the
Custodial Agreement, the Trustee acknowledges receipt, subject to the provisions
of Section 2.01 hereof and Section 2 of the Custodial Agreement, of
the Mortgage Loan Documents and all other assets included in the definition
of
“REMIC I” under clauses (i), (ii) (iii), (v) and (vi) (to the extent of amounts
deposited into the Distribution Account) and declares that it holds (or the
Custodian on its behalf holds) and will hold such documents and the other
documents delivered to it constituting a Mortgage Loan Document, and that it
holds (or the Custodian on its behalf holds) or will hold all such assets and
such other assets included in the definition of “REMIC I” in trust for the
exclusive use and benefit of all present and future
Certificateholders.
(b) In
conducting the review of the Mortgage Files in accordance with the Custodial
Agreement, the Custodian on the Trustee’s behalf will ascertain whether all
required documents have been executed and received and whether those documents
relate to the Mortgage Loans identified in Exhibit B to this Agreement, as
supplemented. If the Custodian finds any document constituting part of the
Mortgage File not to have been executed or received, or to be unrelated to
the
Mortgage Loans identified in Exhibit B, the Sponsor shall correct or cure any
such defect or, if prior to the end of the second anniversary of the Closing
Date, the Sponsor may substitute for the related Mortgage Loan a Replacement
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03 or shall deliver to the
Trustee an Opinion of Counsel to the effect that such defect does not materially
or adversely affect the interests of the Certificateholders in such Mortgage
Loan within sixty (60) days from the date of notice from the Custodian of the
defect and if the Sponsor fails to correct or cure the defect or deliver such
opinion within such period, the Sponsor will, subject to Section 2.03,
within ninety (90) days from the notification of the Custodian purchase such
Mortgage Loan at the Purchase Price; provided, however, that if such defect
relates solely to the inability of the Sponsor to deliver the Mortgage,
assignment thereof to the Custodian, or intervening assignments thereof with
evidence of recording thereon because such documents have been submitted for
recording and have not been returned by the applicable jurisdiction, the Sponsor
shall not be required to purchase such Mortgage Loan if the Sponsor delivers
such documents promptly upon receipt, but in no event later than 360 days after
the Closing Date.
(c) No
later
than 180 days after the Closing Date, the Custodian on the Trustee’s behalf will
review, for the benefit of the Certificateholders, the Mortgage Files and will
execute and deliver or cause to be executed and delivered to the Sponsor and
the
Trustee, a final trust receipt substantially in the form annexed to the
Custodial Agreement. In conducting such review, the Custodian on the Trustee’s
behalf and in accordance with the terms of the Custodial Agreement will
ascertain whether each document required to be recorded has been returned from
the recording office with evidence of recording thereon and the Custodian on
the
Trustee’s behalf has received either an original or a copy thereof, as required
in the Custodial Agreement. If the Custodian finds that any document with
respect to a Mortgage Loan has not been received, or is unrelated to the
Mortgage Loans identified in Exhibit B or appears to be defective on its face,
the Custodian shall note such defect in the exception report attached the final
trust receipt issued pursuant to the Custodial Agreement and the Sponsor shall
correct or cure any such defect or, if prior to the end of the second
anniversary of the Closing Date, the Sponsor 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 Sponsor 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 Sponsor
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
Sponsor 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 Sponsor
shall not be required to purchase such Mortgage Loan, if the Sponsor delivers
such documents promptly upon receipt, but in no event later than 360 days after
the Closing Date.
(d) In
the
event that a Mortgage Loan is purchased by the Sponsor in accordance with
subsections 2.02(a) or (b) above or Section 2.03, the Sponsor shall remit
the applicable Purchase Price to the Servicer for deposit in the Custodial
Account and shall provide written notice to the Securities Administrator
detailing the components of the Purchase Price, signed by an authorized officer.
Upon receipt of notice of the deposit of the Purchase Price in the Custodial
Account and upon receipt of a request for release (in the form attached to
the
Custodial Agreement) with respect to such Mortgage Loan, the Custodian, on
behalf of the Trustee, will release to the Sponsor the related Mortgage File
and
the Trustee shall execute and deliver all instruments of transfer or assignment,
without recourse, furnished to it by the Sponsor, as are necessary to vest
in
the Sponsor 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 Sponsor 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 Sponsor shall promptly reimburse the Trustee
for any expenses incurred by the Trustee in respect of enforcing the remedies
for such breach.
(e) The
Sponsor shall deliver to the Custodian the Mortgage Note and other documents
constituting the Mortgage File with respect to any Replacement Mortgage Loan,
which the Custodian will review as provided in the Custodial Agreement,
provided, that the Closing Date referred to therein shall instead be the date
of
delivery of the Mortgage File with respect to each Replacement Mortgage
Loan.
Section
2.03 Representations,
Warranties and Covenants of the Sponsor and the Master Servicer.
(a) The
Sponsor hereby represents and warrants to and covenants with, the Depositor,
the
Master Servicer, the Securities Administrator and the Trustee as follows, as
of
the Closing Date:
(i) The
Sponsor 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 Sponsor
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
Sponsor 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 Sponsor 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 Sponsor, enforceable
against the Sponsor 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 Sponsor, the sale of the
Mortgage Loans by the Sponsor 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 Sponsor and will not (A) result in a material breach of any term or
provision of the charter or by-laws of the Sponsor 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 Sponsor 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 Sponsor
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over the Sponsor; and the Sponsor 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 Sponsor’s ability to perform or
meet any of its obligations under this Agreement.
(iv) The
Sponsor is an approved seller of conventional mortgage loans for Xxxxxx Xxx
or
Xxxxxxx 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 Sponsor’s knowledge, threatened,
against the Sponsor that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or the ability of the Sponsor
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 Sponsor
of,
or compliance by the Sponsor with, this Agreement or the consummation of the
transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, the Sponsor has obtained the
same.
(vii) The
representations and warranties set forth in Section 8 of the Mortgage Loan
Purchase Agreement are true and correct as of the Closing Date.
(viii) No
Mortgage Loan is subject to the Home Ownership and Equity Protection Act of
1994
or any comparable law and no Mortgage Loan is classified and/or defined as
a
“high cost”, “covered”, “high risk home” or “predatory” loan under any other
state, federal or local law or regulation or ordinance (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans
having high interest rates, points and/or fees).
(ix) No
loan
is a High Cost Loan or Covered Loan, as applicable (as such terms are defined
in
Appendix E of the Standard & Poor's Glossary For File Format For LEVELS®
Version 5.6 Revised (attached hereto as Exhibit K) and no Mortgage Loan
originated on or after October 1, 2002 through March 6, 2003 is governed by
the
Georgia Fair Lending Act.
(x) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, fair housing, predatory, abusive
lending or disclosure laws applicable to the origination and servicing of the
Mortgage Loans have been complied with in all material respects.
(b) 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 Sponsor 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 Custodian of
a
request for release in accordance with the Custodial Agreement. The Sponsor
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 Sponsor 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 Sponsor’s knowledge, if it is
discovered by any of the Depositor, the Sponsor 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 Sponsor’s lack of knowledge with respect to the substance of
such representation or warranty, the Sponsor shall nevertheless be required
to
cure, substitute for or repurchase the affected Mortgage Loan in accordance
with
the foregoing. Notwithstanding the foregoing, any breach of a representation
or
warranty contained in clauses (xxxvii), (xxxviii), (xxxix), (xl) and/or (xlv)
of
Section 8 of the Mortgage Loan Purchase Agreement shall be automatically
deemed to materially and adversely affect the interests of the
Certificateholders.
With
respect to any Replacement Mortgage Loan or Loans, the Sponsor shall deliver
to
the Custodian for the benefit of the Certificateholders such documents and
agreements as are required by Section 2 of the Custodial Agreement. No
substitution will be made in any calendar month after the Determination Date
for
such month. Scheduled Payments due with respect to Replacement Mortgage Loans
in
the Due Period related to the Distribution Date on which such proceeds are
to be
distributed shall not be part of the Trust Fund and will be retained by the
Sponsor. 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 Sponsor shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan. The Servicer shall amend
the
Mortgage Loan Schedule for the benefit of the Certificateholders to reflect
the
removal of such Deleted Mortgage Loan and the substitution of the Replacement
Mortgage Loan or Loans and shall deliver the amended Mortgage Loan Schedule
to
the Trustee, the Master Servicer and the Securities Administrator. Upon such
substitution, the Replacement Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the Sponsor 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 receipt of notice of the deposit into the related
Custodial Account of the amount required to be deposited therein in connection
with such substitution as described in the following paragraph and receipt
by
the Custodian of a request for release for such Mortgage Loan in accordance
with
the Custodial Agreement, the Custodian on behalf of the Trustee shall release
to
the Sponsor the Mortgage File relating to such Deleted Mortgage Loan and held
for the benefit of the Certificateholders and the Trustee shall execute and
deliver at the Sponsor’s direction such instruments of transfer or assignment as
have been prepared by the Sponsor, in each case without recourse, as shall
be
necessary to vest in the Sponsor, or its respective designee, title to the
Trustee’s interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03. Neither the Trustee nor the Custodian shall have any further
responsibility with regard to such Mortgage File.
For
any
month in which the Sponsor substitutes one or more Replacement Mortgage Loans
for a Deleted Mortgage Loan, the Securities Administrator will determine the
amount (if any) by which the aggregate principal balance of all the Replacement
Mortgage Loans as of the date of substitution is less than the Stated Principal
Balance (after application of the principal portion of the Scheduled Payment
due
in the month of substitution) of such Deleted Mortgage Loan. An amount equal
to
the aggregate of such deficiencies, described in the preceding sentence for
any
Distribution Date (such amount, the “Substitution Adjustment Amount”) shall be
remitted to the Servicer for deposit in the Custodial Account by the Sponsor
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 Sponsor 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 Sponsor was required to repurchase such Mortgage Loan. The
Purchase Price shall be remitted by the Servicer to the Securities Administrator
on the Remittance Date occurring in the month immediately following the month
in
which the Purchase Price was deposited in the related 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 Sponsor, and the Trustee shall
execute and deliver at such Person’s direction the related instruments of
transfer or assignment prepared by the Sponsor, 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 Sponsor to any
Mortgage Loan purchased pursuant to this Section 2.03. It is understood and
agreed that the obligation under this Agreement of the Sponsor to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred or
is
continuing shall constitute the sole remedies against the Sponsor respecting
such breach available to each Certificateholder, the Depositor or the
Trustee.
(c) The
Master Servicer hereby represents, warrants and covenants with the Sponsor,
the
Depositor and the Trustee as follows, as of the Closing Date:
(i) The
Master Servicer is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business as
presently conducted by it and to execute, deliver and perform, and to enter
into
and consummate, all transactions contemplated by this Agreement. The Master
Servicer has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation of the Master Servicer,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or similar
laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof are
in
the ordinary course of business of the Master Servicer and will not (A) result
in a breach of any term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may be bound,
or any statute, order or regulation applicable to the Master Servicer of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is not a party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the Master
Servicer’s knowledge, would in the future materially and adversely affect, (x)
the ability of the Master Servicer to perform its obligations under this
Agreement or (y) the business, operations, financial condition, properties
or
assets of the Master Servicer taken as a whole;
(iv) The
Master Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant made by it and contained
in this Agreement;
(v) No
litigation is pending against the Master Servicer that would materially and
adversely affect the execution, delivery or enforceability of this Agreement
or
the ability of the Master Servicer to perform any of its other obligations
hereunder in accordance with the terms hereof,
(vi) There
are
no actions or proceedings against, or investigations known to it of, the Master
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the Master
Servicer of its obligations under, or validity or enforceability of, this
Agreement; and
(vii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of, or compliance by the Master Servicer with, this Agreement or the
consummation by it of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date.
(d) The
representations and warranties set forth in Section 2.03 shall survive
delivery of the respective Mortgage Loans and Mortgage Files to the Trustee
or
the Custodian for the benefit of the Certificateholders.
Section
2.04 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to, and covenants, with the Sponsor,
the Master Servicer, the Securities Administrator and the Trustee as follows,
as
of the date hereof and as of the Closing Date:
(i) The
Depositor is duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has full power and
authority (corporate and other) necessary to own or hold its properties and
to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement.
(ii) The
Depositor has the full corporate power and authority to execute, deliver and
perform, and to enter into and consummate the transactions contemplated by,
this
Agreement and has duly authorized, by all necessary corporate action on its
part, the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery hereof by
the
other parties hereto, constitutes a legal, valid and binding obligation of
the
Depositor, enforceable against the Depositor in accordance with its terms,
subject, as to enforceability, to (i) bankruptcy, insolvency, moratorium
receivership and other similar laws relating to creditors’ rights generally and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought and further
subject to public policy with respect to indemnity and contribution under
applicable securities law.
(iii) The
execution and delivery of this Agreement by the Depositor, the consummation
of
the transactions contemplated by this Agreement, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of business of
the
Depositor and will not (A) result in a material breach of any term or provision
of the charter or by-laws of the Depositor or (B) materially conflict with,
result in a material breach, violation or acceleration of, or result in a
material default under, the terms of any other material agreement or instrument
to which the Depositor is a party or by which it may be bound or (C) constitute
a material violation of any statute, order or regulation applicable to the
Depositor of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Depositor; and the Depositor is not in breach
or violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair the Depositor’s ability
to perform or meet any of its obligations under this Agreement.
(iv) No
litigation is pending, or, to the best of the Depositor’s knowledge, threatened,
against the Depositor that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or the ability of the Depositor
to
perform its obligations under this Agreement in accordance with the terms
hereof.
(v) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Depositor
of, or compliance by the Depositor with, this Agreement or the consummation
of
the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, the Depositor has obtained the
same.
The
Depositor hereby represents and warrants to the Trustee as of the Closing Date,
following the transfer of the Mortgage Loans to it by the Sponsor, 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, the Master Servicer or the Trustee of a breach of
such
representations and warranties, the party discovering such breach shall give
prompt written notice to the others and to each Rating Agency.
Section
2.05 Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
(a) Notwithstanding
any contrary provision of this Agreement, with respect to any Mortgage Loan
that
is not in default or as to which default is not imminent, no repurchase or
substitution pursuant to Sections 2.02 or 2.03 shall be made unless the Sponsor
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 any REMIC executed
hereunder 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 Sponsor 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 Sponsor, at its
option, shall either (i) substitute, if the conditions in Section 2.03(c)
with respect to substitutions are satisfied, a Replacement Mortgage Loan for
the
affected Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within
ninety (90) days of such discovery in the same manner as it would a Mortgage
Loan for a breach of representation or warranty contained in Section 2.03.
The Trustee shall reconvey to the Sponsor 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.
Section
2.06 Issuance
of the REMIC I Regular Interests.
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-1 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-1 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-1 Interest and the REMIC
I Regular Interests, respectively, and all ownership interests evidenced or
constituted by the Class R-1 Interest and the REMIC I Regular Interests, shall
be as set forth in this Agreement.
Section
2.07 Conveyance
of the REMIC I Regular Interests; Issuance and Conveyance of the Class X
Interest, the Class P Interest, and the Class IO Interest.
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-2 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-2
Interest and REMIC II (as holder of the REMIC I Regular Interests). The rights
of the Holder of the Class R-2 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-2 Interest and the Regular Certificates (other than
the
Class X Certificates and the Class P Certificates), the Class X Interest, the
Class P Interest and the Class IO Interest, respectively, and all ownership
interests evidenced or constituted by the Class R-2 Interest and the Regular
Certificates (other than the Class X Certificates and the Class P Certificates),
the Class X Interest, the Class P Interest, and the Class IO Interest, shall
be
as set forth in this Agreement. The Class R-2 Interest, the Regular Certificates
(other than the Class X Certificates and the Class P Certificates), the Class
X
Interest, the Class P Interest and the Class IO Interest shall constitute the
entire beneficial ownership interest in REMIC II.
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 Class X
Interest for the benefit of the Class R-3 Interest and REMIC III (as holder
of
the Class X Interest). The Trustee acknowledges receipt of the Class X Interest
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-3 Interest and
REMIC III (as holder of the Class X Interest). The rights of the Holder of
the
Class R-3 Interest and REMIC III (as holder of the Class X Interest) to receive
distributions from the proceeds of REMIC III in respect of the Class R-3
Interest, the Class X Certificates, and all ownership interests evidenced or
constituted by the Class R-3 Interest and the Class X Certificates, shall be
as
set forth in this Agreement. The Class R-3 Interest and the Class X Certificates
shall constitute the entire beneficial ownership interest in REMIC
III.
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 Class P
Interest for the benefit of the Class R-4 Interest and REMIC IV (as holder
of
the Class P Interest). The Trustee acknowledges receipt of the Class P Interest
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-4 Interest and
REMIC IV (as holder of the Class P Interest). The rights of the Holder of the
Class R-4 Interest and REMIC IV (as holder of the Class P Interest) to receive
distributions from the proceeds of REMIC IV in respect of the Class R-4
Interest, the Class P Certificates, and all ownership interests evidenced or
constituted by the Class R-4 Interest and the Class P Certificates, shall be
as
set forth in this Agreement. The Class R-4 Interest and the Class P Certificates
shall constitute the entire beneficial ownership interest in REMIC
IV.
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 Class IO
Interest for the benefit of the Class R-5 Interest and REMIC V (as holder of
the
Class IO Interest). The Trustee acknowledges receipt of the Class IO Interest
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-5 Interest and
REMIC V (as holder of the Class IO Interest). The rights of the Holder of the
Class R-5 Interest and REMIC V (as holder of the Class IO Interest) to receive
distributions from the proceeds of REMIC V in respect of the Class R-5 Interest,
the Class IO Certificates, and all ownership interests evidenced or constituted
by the Class R-5 Interest and the Class IO Certificates, shall be as set forth
in this Agreement. The Class R-5 Interest and the Class IO Certificates shall
constitute the entire beneficial ownership interest in REMIC V.
Section
2.08 Issuance
of the Class R Certificates and the Class R-X Certificates.
The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests
and,
concurrently therewith and in exchange therefor, pursuant to the written request
of the Depositor executed by an officer of the Depositor, the Securities
Administrator has executed, authenticated and delivered to or upon the order
of
the Depositor, the Class R Certificates in authorized denominations.
The
Trustee acknowledged the assignment to it of the Class X Interest, the Class
P
Interest and the Class IO Interest and, concurrently therewith and in exchange
therefor, pursuant to the written request of the Depositor executed by an
officer of the Depositor, the Securities Administrator has executed,
authenticated and delivered to or upon the order of the Depositor, the Class
R-X
Certificates in authorized denominations.
Section
2.09 Establishment
of Trust.
The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust to be known,
for convenience, as “Nomura Asset Acceptance Corporation, Alternative Loan
Trust, Series 2006-WF1” and does hereby appoint HSBC Bank USA, National
Association, as Trustee in accordance with the provisions of this
Agreement.
Section
2.10 Purpose
and Powers of the Trust.
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing or other than as required or authorized by the terms of this Agreement
while any Certificate is outstanding, and this Section 2.10 may not be amended,
without the consent of the Certificateholders evidencing 51% or more of the
aggregate voting rights of the Certificates.
ARTICLE
III
ADMINISTRATION
OF THE MORTGAGE LOANS; ACCOUNTS
Section
3.01 Reserved.
Section
3.02 Reserved.
Section
3.03 Reserved.
Section
3.04 Reserved.
Section
3.05 Reserved.
Section
3.06 Reserved.
Section
3.07 Reserved.
Section
3.08 Reserved.
Section
3.09 Reserved.
Section
3.10 Reserved.
Section
3.11 Reserved.
Section
3.12 Reserved.
Section
3.13 Annual
Statement as to Compliance.
(a) The
Master Servicer and the Securities Administrator shall deliver or otherwise
make
available (and shall cause each Servicing Function Participant engaged by it
to
deliver) to the Depositor and the Securities Administrator and in the case
of
the Master Servicer, to the Trustee on or before March 15 of each year,
commencing in March 2007, an Officer’s Certificate stating, as to the signer
thereof, that (A) a review of such party’s activities during the preceding
calendar year or portion thereof and of such party’s performance under this
Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, has been made under such officer’s supervision and (B) to
the best of such officer’s knowledge, based on such review, such party has
fulfilled all its obligations under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant (other than the Master
Servicer or the Securities Administrator), in all material respects throughout
such year or portion thereof, or, if there has been a failure to fulfill any
such obligation in any material respect, specifying each such failure known
to
such officer and the nature and status thereof.
The
Master Servicer shall enforce the obligation of the Servicer as set forth in
the
Servicing Agreement to deliver to the Master Servicer an annual statement of
compliance within the time frame set forth in, and in such form and substance
as
may be required pursuant to, the Servicing Agreement The Master Servicer shall
include such annual statement of compliance with its own annual statement of
compliance to be submitted to the Securities Administrator pursuant to this
Section. For so long as the Trust Fund is subject to Exchange Act reporting
requirements, failure of the Servicer to timely deliver an annual statement
of
compliance pursuant to the Servicing Agreement shall be deemed a Servicer
Default under the Servicing Agreement, automatically, without notice and without
any cure period, and the Master Servicer shall notify the Trustee and the
Trustee may, in addition to whatever rights the Trustee may have under this
Agreement, the Servicing Agreement and at law or in equity or to damages,
including injunctive relief and specific performance, terminate all the rights
and obligations of the Servicer under the Servicing Agreement and in and to
the
Mortgage Loans and the proceeds thereof without compensating the Servicer for
the same. The Trustee shall so terminate the Servicer by delivery of notice
thereof via first class mail, facsimile or electronic mail. After the Trust
Fund
ceases to be subject to Exchange Act reporting requirements, failure of the
Servicer to perform deliver an annual statement of compliance on or before
March
31 of each such year shall be deemed a Servicer Default under the Servicing
Agreement. The Master Servicer shall notify the Trustee and the Trustee may
terminate the Servicer by delivery of notice thereof via first class mail,
facsimile or electronic mail.
(b) (i)For
so
long as the Trust Fund is subject to Exchange Act reporting requirements,
failure of the Master Servicer to comply timely with this Section 3.13 shall
be
deemed a Master Servicer Default, without any cure period, and the Trustee
may,
in addition to whatever rights the Trustee may have under this Agreement and
at
law or in equity or to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Master Servicer for the same. The Trustee shall so
terminate the Master Servicer by delivery of notice thereof via first class
mail, facsimile or electronic mail. This paragraph shall supersede any other
provision in this Agreement or any other agreement to the contrary.
(ii) After
the
Trust Fund ceases to be subject to Exchange Act reporting requirements, failure
of the Master Servicer to duly perform its obligations under this Section 3.13
on or before March 31 of each such year shall be deemed a Master Servicer
Default as provided for in Section 8.01(a)(x). The Trustee may terminate the
Master Servicer by delivery of notice thereof via first class mail, facsimile
or
electronic mail.
(c) The
Master Servicer shall include all annual statements of compliance received
by it
from the Servicer with its own annual statement of compliance to be submitted
to
the Securities Administrator pursuant to this Section 3.13.
(d) Copies
of
any Master Servicer annual statements of compliance required to be delivered
hereunder shall be provided to any Certificateholder upon request at the Master
Servicer’s expense.
(e) In
the
event the Servicer, the Master Servicer, the Securities Administrator or any
Servicing Function Participant is terminated or resigns pursuant to the terms
of
this Agreement or the Servicing Agreement, or any applicable agreement in the
case of such Servicing Function Participant, as the case may be, such party
shall provide or cause such Servicing Function Participant to provide an
Officer’s Certificate pursuant to this Section 3.13 or pursuant to the Servicing
Agreement with respect to the period of time it was subject to this Agreement,
the Servicing Agreement or any other applicable agreement, as the case may
be
notwithstanding any such termination, assignment or resignation.
Section
3.14 Assessments
of Compliance and Attestation Reports.
(a) By
March
15 of
each
year, commencing in March 2007,
the
Master Servicer and the Securities Administrator, each at its own expense and
pursuant to Item 1122(a) of Regulation AB, shall furnish or otherwise make
available, and shall cause any Servicing Function Participant engaged by it
to
furnish, which in each case shall not be an expense of the Trust Fund, to the
Securities Administrator and the Depositor, a report on an assessment of
compliance with the Relevant Servicing Criteria that contains (A) a statement
by
such party of its responsibility for assessing compliance with the Relevant
Servicing Criteria, (B) a statement that such party used the Relevant Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
party’s assessment of compliance with the Relevant Servicing Criteria for the
period consisting of the prior calendar year, including, if there has been
any
material instance of noncompliance with the Relevant Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D)
a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria for the period consisting of the prior calendar year.
(b) No
later
than February 1 of each year, commencing in February 2007, the Master Servicer
shall forward to the Securities Administrator and the Depositor the name of
each
Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared
by
such Servicing Function Participant; provided, however, that the Master Servicer
need not provide such information to the Securities Administrator so long as
the
Master Servicer and the Securities Administrator are the same entity. When
the
Master Servicer (or any Servicing Function Participant engaged by them) submits
its assessments to the Securities Administrator, such party will also at such
time include the assessment (and attestation pursuant to paragraph (c) below)
of
each Servicing Function Participant engaged by it.
Promptly
after receipt of each such report on assessment of compliance pursuant to this
Agreement and the Servicing Agreement, (i) the Depositor shall review each
such
report and, if applicable, consult with the Servicer, the Master Servicer,
the
Securities Administrator and any Servicing Function Participant engaged by
such
parties as to the nature of any material instance of noncompliance with the
Relevant Servicing Criteria by each such party, and (ii) the Securities
Administrator shall confirm that the assessments, taken as a whole, address
all
of the Servicing Criteria and taken individually address the Relevant Servicing
Criteria for each party as set forth on Exhibit L and on any similar exhibit
set
forth in the Servicing Agreement in respect of the Servicer and notify the
Depositor of any exceptions.
In
the
event the Master Servicer, Securities Administrator or any Servicing Function
Participant is terminated, assigns its rights and obligations under or resigns
pursuant to the terms of this Agreement, or any other applicable agreement,
as
the case may be, such party shall provide, or cause a Servicing Function
Participant engaged by it to provide, a report on assessment of compliance
pursuant to this Section 3.14 with respect to the period of time it was subject
to this Agreement or any other applicable agreement, as the case may be,
notwithstanding any such termination, assignment or resignation.
The
Master Servicer shall include all annual reports on assessment of compliance
received by it from each Servicer with its own assessment of compliance to
be
submitted to the Securities Administrator pursuant to this Section.
(c) By
March
15 of each year, commencing in March 2007, the Master Servicer and the
Securities Administrator, each at its own expense, shall cause, and shall cause
any Servicing Function Participant engaged by such party to cause, which in
each
case shall not be an expense of the trust, a registered public accounting firm
(which may also render other services to such Servicing Function Participants)
and that is a member of the American Institute of Certified Public Accountants
to furnish an attestation report to the Master Servicer and Securities
Administrator to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii)
on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the PCAOB, it is expressing
an
opinion as to whether such party’s compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party’s assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
Promptly
after receipt of each such report on assessment of compliance and attestation
report from a Servicing Function Participant, the Securities Administrator
shall
confirm that each assessment submitted pursuant to paragraph (a) above is
coupled with an attestation meeting the requirements of this Section and notify
the Depositor of any exceptions.
In
the
event the Master Servicer, Securities Administrator or any Servicing Function
Participant is terminated, assigns its rights and obligations under or resigns
pursuant to the terms of this Agreement, or any other applicable agreement,
as
the case may be, such party shall cause a registered public accounting firm
to
provide an attestation pursuant to this Section 3.14 or such other agreement
with respect to the period of time it was subject to this Agreement or such
other agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
Section
3.15 Reserved.
Section
3.16 The
Trustee.
The
Trustee shall furnish the Servicer with any powers of attorney and other
documents prepared and submitted by the Servicer to the Trustee in a form as
mutually agreed upon and necessary or appropriate to enable the Servicer to
service and administer the Mortgage Loans and REO Properties.
The
Trustee shall provide access to the records and documentation in possession
of
the Trustee regarding the related Mortgage Loans and REO Property and the
servicing thereof to the Certificateholders, the FDIC, and the supervisory
agents and examiners of the FDIC, such access being afforded only upon
reasonable prior written request and during normal business hours at the office
of the Trustee; provided, however, that, unless otherwise required by law,
the
Trustee shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee shall allow representatives of the above entities
to photocopy any of the records and documentation and shall provide equipment
for that purpose at a charge that covers the Trustee’s actual
costs.
The
Trustee shall execute and deliver as directed in writing by the Servicer any
court pleadings, requests for trustee’s sale or other documents necessary or
desirable to (i) the foreclosure or trustee’s sale with respect to a Mortgaged
Property; (ii) any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note; (iii) obtain a deficiency judgment against the Mortgagor;
or (iv) enforce any other rights or remedies provided by the Mortgage Note or
otherwise available at law or equity.
Section
3.17 REMIC-Related
Covenants.
For
as
long as each REMIC shall exist, the Trustee and the Securities Administrator
shall act in accordance herewith to treat each REMIC as a REMIC, and the Trustee
and the Securities Administrator shall comply with any directions of the
Sponsor, the Servicer or the Master Servicer with respect to such treatment.
In
particular, the Trustee shall not (a) knowingly sell or permit the sale of
all
or any portion of the Mortgage Loans or of any investment of deposits in an
Account unless such sale is as a result of a repurchase of the Mortgage Loans
pursuant to this Agreement or the Trustee has received a REMIC Opinion prepared
at the expense of the Trust Fund; and (b) other than with respect to a
substitution pursuant to the Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applicable, accept any contribution to
any REMIC after the Startup Day without receipt of a REMIC Opinion.
Section
3.18 Annual
Xxxxxxxx-Xxxxx Certification; Additional Information.
The
Master Servicer and the Securities Administrator shall and shall cause any
Servicing Function Participant engaged by such party to, provide to the
Certifying Person, by March 15 of each year in which the Trust Fund is subject
to the reporting requirements of the Exchange Act and otherwise within a
reasonable period of time upon request, a certification (each, a “Back-Up
Certification”),
in
the form attached hereto as Exhibit
M,
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall prepare a Xxxxxxxx-Xxxxx Certification and
sign
the same on behalf of the Trust Fund serving as the “Certifying Person”. Such
officer of the Certifying Person can be contacted by e-mail at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
or by
facsimile at (000) 000-0000. In the event the Servicer, the Master Servicer
or
the Securities Administrator, or any Servicing Function Participant engaged
by
such party, is terminated or resigns pursuant to the terms of this Agreement,
or
any other applicable agreement, as the case may be, such party shall provide
a
Back-Up Certification to the Certifying Person pursuant to this Section 3.18
with respect to the period of time it was subject to this Agreement or any
other
applicable agreement, as the case may be.
Notwithstanding
the foregoing, (i) the Master Servicer and the Securities Administrator shall
not be required to deliver a Back-Up Certification to each other if each is
the
same Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to execute any Xxxxxxxx-Xxxxx Certification
in
the event that it does not receive a Back-Up Certification from any party
required to deliver such Back-Up Certification pursuant to this Section or
the
Custodial Agreement; provided, however, in the event the Master Servicer shall
not be required to execute a Xxxxxxxx-Xxxxx Certification pursuant to clause
(ii), the Master Servicer shall prepare such Xxxxxxxx-Xxxxx Certification and
deliver it to the Depositor for execution.
Section
3.19 Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
the Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will (or if the Servicer does not, the Master
Servicer may) promptly furnish to the Trustee if required by the Servicing
Agreement and the Custodian, on behalf of the Trustee, two copies of a request
for release substantially in the form attached to the Custodial Agreement signed
by an Authorized Servicer Representative or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from an
Authorized Servicer Representative (which certification shall include a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Custodial Account pursuant
to
the Servicing Agreement have been or will be so deposited) and shall request
that the Custodian, on behalf of the Trustee, deliver to the Servicer the
related Mortgage File. Within five (5) Business Days of receipt of such
certification and request, the Custodian, on behalf of the Trustee, shall
release the related Mortgage File to the Servicer and the Trustee and the
Custodian shall have no further responsibility with regard to such Mortgage
File. Upon any such payment in full, the Servicer is authorized, to give, as
agent for the Trustee, as the mortgagee under the Mortgage that secured the
related Mortgage Loan, an instrument of satisfaction (or assignment of mortgage
without recourse) regarding the Mortgaged Property subject to the Mortgage,
which instrument of satisfaction or assignment, as the case may be, shall be
delivered to the Person or Persons entitled thereto against receipt therefor
of
such payment, it being understood and agreed that no expenses incurred in
connection with such instrument of satisfaction or assignment, as the case
may
be, shall be chargeable to the Custodial Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with this Agreement, the Trustee shall execute such documents
as shall be prepared and furnished to the Trustee by the Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of
any such proceedings. The Custodian, on behalf of the Trustee, shall, upon
the
written request of the Servicer, and delivery to the Custodian, on behalf of
the
Trustee, of two copies of a request for release signed by an Authorized Servicer
Representative substantially in the form attached to the Custodial Agreement
(or
in a mutually agreeable electronic format which will, in lieu of a signature
on
its face, originate from an Authorized Servicer Representative), release the
related Mortgage File held in its possession or control to the Servicer. Such
request for release shall obligate the Servicer to return the Mortgage File
to
the Custodian on behalf of the Trustee, when the need therefor by such Person
no
longer exists unless the Mortgage Loan shall be liquidated, in which case,
upon
receipt of a certificate of an Authorized Servicer Representative similar to
that hereinabove specified, the Mortgage File shall be released by the
Custodian, on behalf of the Trustee, to the Servicer.
Section
3.20 Reserved.
Section
3.21 Reserved.
Section
3.22 Reserved.
Section
3.23 Reserved.
Section
3.24 Optional
Purchase of Defaulted Mortgage Loans.
With
respect to any Mortgage Loan which is delinquent in payment by ninety-one (91)
days or more or is an REO Property, the Sponsor shall have the right to purchase
such Mortgage Loan or REO Property from the Trust Fund at a price equal to
the
Purchase Price. The Purchase Price shall be remitted to the Servicer for deposit
in the Custodial Account and remitted by the Servicer to the Securities
Administrator on the Servicer Remittance Date in the month immediately following
the month in which the Purchase Price was deposited in the Custodial
Account.
In
addition, the Sponsor shall, at its option, purchase any Mortgage Loan from
the
Trust if the first or second Due Date for such Mortgage Loan is subsequent
to
the Cut-off Date and the first or second Monthly Payment is not made within
thirty (30) days of such Due Date. Such purchase shall only be made if such
Monthly Payments have not been received as of the date of purchase and such
purchase shall be made at a price equal to the Purchase Price.
If
at any
time the Sponsor remits to the Servicer a payment for deposit in the Custodial
Account covering the amount of the Purchase Price for such a Mortgage Loan
and
the Servicer delivers an Officer’s Certificate to the Trustee certifying that
the Purchase Price has been deposited in the Custodial Account (which shall
be
delivered no more than two Business Days following such deposit), the Trustee
shall execute the assignment of such Mortgage Loan at the request of the Sponsor
without recourse to the Sponsor which shall succeed to all the Trustee’s, right,
title and interest in and to such Mortgage Loan, and all security and documents
relative thereto. Such assignment shall be an assignment outright and not for
security. The Sponsor will thereupon own such Mortgage, and all such security
and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto. The Sponsor shall be responsible for
any transfer costs incurred with respect to a Mortgage Loan purchased pursuant
to this Section 3.24.
If
the
Sponsor is required to repurchase a Mortgage Loan pursuant to this Section
3.24,
the Servicer shall continue to service such Mortgage Loan unless the Sponsor
shall repurchase the servicing rights thereon on terms mutually agreed to by
the
Sponsor and the Servicer. Notwithstanding the foregoing, the Master Servicer
shall have no obligation to master service any Mortgage Loan that has been
so
repurchased.
Section
3.25 Obligations
of the Servicer Under Credit Risk Management Agreement.
Notwithstanding
anything in this Agreement or the Credit Risk Management Agreements to the
contrary, the Trustee shall not have any duty or obligation to enforce any
Credit Risk Management Agreement or to supervise, monitor or oversee the
activities of the Credit Risk Manager or the Servicer under the Credit Risk
Management Agreements or this Agreement with respect to any action taken or
not
taken by the Servicer pursuant to a recommendation of the Credit Risk Manager
or
otherwise in connection with obligations of the Servicer under the related
Credit Risk Management Agreement.
Section
3.26 Reserved.
Section
3.27 Reserved.
Section
3.28 Reserved.
Section
3.29 Reserved.
Section
3.30 Reserved.
Section
3.31 Distribution
Account.
(a) The
Securities Administrator shall establish and maintain for the benefit of the
Certificateholders a Distribution Account as a segregated non-interest bearing
trust account or accounts. The Securities Administrator will deposit in the
Distribution Account as identified by the Securities Administrator and as
received by the Securities Administrator, the following amounts:
(i) All
payments and recoveries in respect of principal on the Mortgage Loans,
including, without limitation, Principal Prepayments, Subsequent Recoveries,
Liquidation Proceeds, Insurance Proceeds, condemnation proceeds, all payments
of
claims under the PMI Policy and all payments and recoveries in respect of
interest on the related Mortgage Loans withdrawn by the Servicer from the
Custodial Account and remitted by Servicer to the Securities
Administrator;
(ii) Any
Advance and any Compensating Interest Payments;
(iii) Any
Prepayment Charges collected by the Servicer in connection with the Principal
Prepayment of any of the Mortgage Loans (including any Servicer Prepayment
Charge Payment Amounts);
(iv) Any
Insurance Proceeds or Liquidation Proceeds received by or on behalf of the
Securities Administrator or which were not deposited in the Custodial
Account;
(v) The
Purchase Price with respect to any related Mortgage Loans purchased by the
Sponsor or Section 2.02 or 2.03, any amounts which are to be treated
pursuant to Section 2.04 of this Agreement as the payment of such a
Purchase Price, the Purchase Price with respect to any related Mortgage Loans
purchased by the Sponsor pursuant to Section 3.24, and all proceeds of any
related Mortgage Loans or property acquired with respect thereto repurchased
by
the Master Servicer pursuant to Section 10.01;
(vi) Any
amounts required to be deposited with respect to losses on investments of
deposits in an Account; and
(vii) Any
other
amounts received by or on behalf of the Securities Administrator and required
to
be deposited in the Distribution Account pursuant to this
Agreement.
(b) All
amounts deposited to the Distribution Account shall be held by the Securities
Administrator in the name of the Trustee in trust for the benefit of the related
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Distribution Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption,
tax service, statement account or payoff, substitution, satisfaction, release
and other like fees and charges, need not be credited by the Securities
Administrator to the Distribution Account.
(c) The
amount at any time credited to the Distribution Account may be invested by
the
Securities Administrator in Permitted Investments that mature no later than
the
Business Day prior to the next succeeding Distribution Date as directed by
the
Master Servicer, unless the investment is managed by the Securities
Administrator or an affiliate of the Securities Administrator, in which case
such Permitted Investments may mature on the Distribution Date. All such
investment income shall be for the benefit of the Master Servicer, and any
losses incurred shall be deposited by the Master Servicer in the Distribution
Account immediately as realized.
Section
3.32 Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Securities Administrator will from time to time make or cause to be made such
withdrawals or transfers from the Distribution Account pursuant to this
Agreement for the following purposes:
(i) to
pay to
the Trustee any expenses recoverable by the Trustee pursuant to this
Agreement.
(ii) to
reimburse the Master Servicer as Successor Servicer or the Servicer for any
Advance or Servicing Advance of its own funds, the right of the Master Servicer
as Successor Servicer or the Servicer to reimbursement pursuant to this
subclause (ii) being limited to amounts received on a particular Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds,
Liquidation Proceeds and condemnation proceeds) which represent late payments
or
recoveries of the principal of or interest on such Mortgage Loan respecting
which such Advance or Servicing Advance was made;
(iii) to
reimburse the Master Servicer or the Servicer from Insurance Proceeds or
Liquidation Proceeds relating to a particular Mortgage Loan for amounts expended
by the Master Servicer as Successor Servicer or the Servicer in good faith
in
connection with the restoration of the related Mortgaged Property which was
damaged by an uninsured cause or in connection with the liquidation of such
Mortgage Loan;
(iv) to
reimburse the Master Servicer as Successor Servicer or the Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for insured expenses
incurred with respect to such Mortgage Loan and to reimburse the Master Servicer
as Successor Servicer or the Servicer from Liquidation Proceeds from a
particular Mortgage Loan for Liquidation Expenses incurred with respect to
such
Mortgage Loan;
(v) to
reimburse the Master Servicer as Successor Servicer or the Servicer for advances
of funds pursuant to this Agreement, and the right to reimbursement pursuant
to
this subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds,
Liquidation Proceeds and condemnation proceeds) which represent late recoveries
of the payments for which such advances were made;
(vi) to
reimburse the Master Servicer as Successor Servicer or the Servicer for any
Advance or advance, after a Realized Loss has been allocated with respect to
the
related Mortgage Loan if the Advance or advance has not been reimbursed pursuant
to clauses (ii) and (v);
(vii) to
pay
the PMI Insurer Fee to the PMI Insurer and to pay the Credit Risk Management
Fee
to the Credit Risk Manager; provided, however, that upon the termination of
the
Credit Risk Manager pursuant to Section 3.33 hereof, the amount of the
Credit Risk Management Fee (or any portion thereof) previously payable to the
Credit Risk Manager as described herein shall be paid to the
Sponsor;
(viii) to
reimburse the Trustee or the Securities Administrator for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to this Agreement
(including the expenses of the Securities Administrator in connection with
a tax
audit in connection with the performance of its obligations pursuant to
Section 9.13);
(ix) to
pay to
the Trust Fund, as additional servicing compensation, any Excess Liquidation
Proceeds to the extent not retained by the Servicer;
(x) to
reimburse or pay the Servicer any such amounts as are due thereto under this
Agreement and have not been retained by or paid to the Servicer, to the extent
provided herein or therein;
(xi) to
reimburse the Trustee for expenses incurred in the transfer of servicing
responsibilities of the terminated Servicer after the occurrence and continuance
of a Servicer Default to the extent not paid by the terminated
Servicer;
(xii) to
reimburse the Master Servicer for any costs and expenses reimbursable to the
Master Servicer pursuant to this Agreement;
(xiii) to
reimburse the Custodian for expenses, costs and liabilities incurred or
reimbursable to it pursuant to this Agreement or the Custodial
Agreement;
(xiv) to
remove
amounts deposited in error; and
(xv) to
clear
and terminate the Distribution Account pursuant to
Section 10.01.
(b) The
Securities Administrator shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (ii) through
(v), inclusive, and (vii) or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by the
Securities Administrator without being deposited in the Distribution Account
under Section 3.31.
(c) On
each
Distribution Date, the Securities Administrator shall distribute the Available
Distribution Amount, to the extent of funds on deposit in the Distribution
Account after taking into account permitted withdrawals therefrom pursuant
to
clause (a) above, to the holders of the Certificates in accordance with
Section 5.04.
Section
3.33 Duties
of the Credit Risk Manager; Termination.
(a) The
Depositor appoints Portfolio Surveillance Analytics, LLC, a wholly owned
subsidiary of InformationLogix, Inc. as Credit Risk Manager. For and on behalf
of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning the Mortgage Loans that are past due, as to which
there has been commencement of foreclosure, as to which there has been
forbearance in exercise of remedies which are in default, as to which a
Mortgagor is the subject of bankruptcy, receivership, or an arrangement of
creditors, or as to which have become REO Properties. Such reports and
recommendations will be based upon information provided to the Credit Risk
Manager pursuant to the related Credit Risk Management Agreement and the Credit
Risk Manager shall look solely to the Servicer and/or Master Servicer for all
information and data (including loss and delinquency information and data)
and
loan level information and data relating to the servicing of the related
Mortgage Loans. If the Credit Risk Manager is no longer able to perform its
duties hereunder, the Credit Risk Manager may be terminated by the Depositor
at
the direction of Certificateholders evidencing not less than 66 2/3% of the
Voting Rights. The Depositor may, at its option, cause the appointment of a
successor Credit Risk Manager. Upon any termination of the Credit Risk Manager
or the appointment of a successor Credit Risk Manager, the Depositor shall
give
written notice thereof to the Servicer, the Trustee, each Rating Agency and
the
Credit Risk Manager. Notwithstanding the foregoing, the termination of the
Credit Risk Manager pursuant to Section 3.33(b) shall not become effective
until the appointment of a successor Credit Risk Manager. The Trustee is hereby
authorized to enter into any Credit Risk Management Agreement necessary to
effect the foregoing.
(b) Within
six months of the Closing Date, the Sponsor may, at its option, terminate the
Credit Risk Manager if, in its reasonable judgment, (i) the value of the
servicing rights with respect to the Mortgage Loans is adversely affected as
a
result of the presence of the Credit Risk Manager or (ii) the presence of the
Credit Risk Manager impairs the ability of the Sponsor to transfer the servicing
rights with respect to the Mortgage Loans as permitted by this Agreement. Upon
the termination of the Credit Risk Manager, the Sponsor may, at its option,
cause the Depositor to appoint a successor Credit Risk Manager. Notice of such
termination shall be provided by the Sponsor to the Rating Agencies, the
Trustee, the Securities Administrator, the Depositor, the Servicer and the
Credit Risk Manager. Upon the appointment of a successor Credit Risk Manager,
the Depositor shall provide written notice thereof to each Rating Agency, the
Trustee, the Servicer, the Securities Administrator and the Credit Risk
Manager.
If
the
Credit Risk Manager is terminated pursuant to this Section 3.33(b), the
Credit Risk Manager shall only be entitled to a fee equal to 0.0050% with
respect to each Mortgage Loan for the one year period following such
termination. After the expiration of such one year period, the Credit Risk
Manager shall not be entitled to the Credit Risk Management Fee or any portion
thereof with respect to any Mortgage Loan. The excess of the Credit Risk
Management Fee with respect to each Mortgage Loan over the amount payable to
the
Credit Risk Manager as described in this paragraph shall be paid to the Sponsor
pursuant to Section 5.04(a).
Section
3.34 Limitation
Upon Liability of the Credit Risk Manager.
Neither
the Credit Risk Manager, nor any of the directors, officers, employees or agents
of the Credit Risk Manager, shall be under any liability to the Servicer, the
Master Servicer, the Securities Administrator, the Trustee, the
Certificateholders or the Depositor for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, in reliance
upon information provided by the Servicer and/or Master Servicer under the
related Credit Risk Management Agreement or of errors in judgment; provided,
however, that this provision shall not protect the Credit Risk Manager or any
such person against liability that would otherwise be imposed by reason of
willful malfeasance, bad faith or gross negligence in its performance of its
duties under this Agreement or the applicable Credit Risk Management Agreement.
The Credit Risk Manager and any director, officer, employee or agent of the
Credit Risk Manager may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder, and may rely in good faith upon the accuracy of information
furnished by the Servicer and/or Master Servicer pursuant to the related Credit
Risk Management Agreement in the performance of its duties thereunder and
hereunder.
ARTICLE
IV
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS
Section
4.01 The
Master Servicer.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicer to
service and administer the Mortgage Loans in accordance with the terms of the
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with
the
Servicer as necessary from time-to-time to carry out the Master Servicer’s
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by the Servicer
and
shall cause the Servicer to perform and observe the covenants, obligations
and
conditions to be performed or observed by the Servicer under the Servicing
Agreement. The Master Servicer shall independently and separately monitor the
servicing activities of the Servicer with respect to each Mortgage Loan,
reconcile the results of such monitoring with such information provided in
the
previous sentence on a monthly basis and coordinate corrective adjustments
to
the Servicer’s and Master Servicer’s records, and based on such reconciled and
corrected information, provide such information relating to the Mortgage Loans
to the Securities Administrator as shall be necessary to enable it to prepare
the statements specified in Section 5.06 and any other information and
statements required to be provided by the Securities Administrator hereunder.
The Master Servicer shall reconcile the results of its Mortgage Loan monitoring
with the actual remittances of the Servicer to the Distribution
Account.
Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not have
any duty or obligation to enforce any Credit Risk Management Agreement that
the
Servicer is a party to (the “Servicer Credit Risk Management Agreement”) or to
supervise, monitor or oversee the activities of the Credit Risk Manager under
the Servicer Credit Risk Management Agreement with respect to any action taken
or not taken by the Servicer pursuant to a recommendation of the Credit Risk
Manager.
The
Trustee shall furnish the Servicer and the Master Servicer with any limited
powers of attorney and other documents in form acceptable to the Trustee
necessary or appropriate to enable the Servicer and the Master Servicer to
service or master service and administer the Mortgage Loans and REO Property.
The Trustee shall have no responsibility for any action of the Master Servicer
or the Servicer pursuant to any such limited power of attorney and shall be
indemnified by the Master Servicer or the Servicer for any cost, liability
or
expense arising from the misuse thereof by the Master Servicer or the
Servicer.
The
Trustee, the Custodian and the Securities Administrator shall provide access
to
the records and documentation in possession of the Trustee, the Custodian or
the
Securities Administrator regarding the Mortgage Loans and REO Property and
the
servicing thereof to the Certificateholders, the FDIC, and the supervisory
agents and examiners of the FDIC, such access being afforded only upon
reasonable prior written request and during normal business hours at the office
of the Trustee, the Custodian or the Securities Administrator; provided,
however, that, unless otherwise required by law, none of the Trustee, the
Custodian or the Securities Administrator shall be required to provide access
to
such records and documentation if the provision thereof would violate the legal
right to privacy of any Mortgagor. The Trustee, the Custodian and the Securities
Administrator shall allow representatives of the above entities to photocopy
any
of the records and documentation and shall provide equipment for that purpose
at
a charge that covers the Trustee’s, the Custodian’s or the Securities
Administrator’s actual costs.
The
Trustee shall execute and deliver to the Servicer or the Master Servicer upon
request any court pleadings, requests for trustee’s sale or other documents
necessary or desirable and, in each case, provided to the Trustee by the
Servicer or the Master Servicer to (i) the foreclosure or trustee’s sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or any other Loan Document;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or any other Mortgage
Loan Document or otherwise available at law or equity.
Section
4.02 Monitoring
of Servicer.
The
Master Servicer shall be responsible for monitoring the compliance by the
Servicer with its duties under the Servicing Agreement. In the review of the
Servicer’s activities, the Master Servicer may rely upon an officer’s
certificate of the Servicer with regard to the Servicer’s compliance with the
terms of the Servicing Agreement. In the event that the Master Servicer, in
its
judgment, determines that the Servicer should be terminated in accordance with
the Servicing Agreement, or that a notice should be sent pursuant to the
Servicing Agreement with respect to the occurrence of an event that, unless
cured, would constitute grounds for such termination, the Master Servicer shall
notify the Sponsor and the Trustee thereof and the Master Servicer shall issue
such notice or take such other action as it deems appropriate.
The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of the Servicer under the Servicing Agreement,
and
shall, in the event that the Servicer fails to perform its obligations in
accordance with the Servicing Agreement, subject to this Section and
Article VIII, shall notify the Trustee and the Trustee shall terminate the
rights and obligations of the Servicer under the Servicing Agreement in
accordance with the provisions of Article VIII. The Trustee shall act as
servicer of the Mortgage Loans or enter in to a new servicing agreement with
a
successor servicer selected by the Trustee with the consent of the Master
Servicer (such consent not to be unreasonably withheld); provided, however,
it
is understood and acknowledged by the parties hereto that there will be a period
of transition (not to exceed 90 days) before the actual servicing functions
can
be fully transferred to the Trustee or such successor servicer. Such
enforcement, including, without limitation, the legal prosecution of claims
and
the pursuit of other appropriate remedies, shall be in such form and carried
out
to such an extent and at such time as the Trustee, in its good faith business
judgment, would require were it the owner of the Mortgage Loans. The Trustee
shall pay the costs of such enforcement, provided that no provision of this
Agreement shall require the Trustee, to expend or risk its own funds or
otherwise incur any financial liability in the performance or any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
To
the
extent that the costs and expenses related to the termination of the Servicer,
appointment of a Successor Servicer or the transfer and assumption of servicing
by the Trustee as Successor Servicer (including, without limitation, (i) all
legal costs and expenses and all due diligence costs and expenses associated
with an evaluation of the potential termination of the Servicer as a result
of
an event of default by the Servicer and (ii) all costs and expenses associated
with the complete transfer of servicing, including all servicing files and
all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Successor Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Successor
Servicer to service the Mortgage Loans in accordance with the Servicing
Agreement) are not fully and timely reimbursed by the terminated Servicer,
the
Trustee shall be entitled to reimbursement of such costs and expenses from
the
Distribution Account.
The
Master Servicer shall require the Servicer to comply with the remittance
requirements and other obligations set forth in the Servicing
Agreement.
If
the
Trustee acts as Successor Servicer, it shall not assume liability for the
representations and warranties of the Servicer, if any, that it
replaces.
Section
4.03 Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy that shall be in such form
and
amount generally acceptable for entities serving as master servicers or
trustees, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer’s behalf, and covering errors
and omissions in the performance of the Master Servicer’s obligations hereunder.
Any such errors and omissions policy and fidelity bond may not be cancelable
without thirty (30) days’ prior written notice to the Trustee.
Section
4.04 Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Section 9.13 hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Loan, in each case, in
accordance with the provisions of this Agreement; provided, however, that the
Master Servicer shall not (and, consistent with its responsibilities under
Section 4.02, shall not permit the Servicer to) knowingly or intentionally
take any action, or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, would cause any REMIC to fail to qualify as a REMIC or result
in
the imposition of a tax upon the Trust Fund (including but not limited to the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) unless the Master Servicer has received an Opinion of Counsel (but not
at
the expense of the Master Servicer) to the effect that the contemplated action
will not cause any REMIC to fail to qualify as a REMIC or result in the
imposition of a tax upon any REMIC. The Trustee shall furnish the Master
Servicer, upon written request from a Servicing Officer or an Authorized
Servicer Representative, with any powers of attorney (in form acceptable to
Trustee) empowering the Master Servicer, or the Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property,
and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with this Agreement, and the
Trustee shall execute and deliver such other documents, as the Master Servicer
or the Servicer may request, to enable the Master Servicer to master service
and
administer the Mortgage Loans and carry out its duties hereunder, in each case
in accordance with Accepted Master Servicing Practices (and the Trustee shall
have no liability for the misuse of any such powers of attorney by the Master
Servicer or the Servicer and shall be indemnified by the Master Servicer or
the
Servicer, as applicable, for any costs, liabilities or expenses incurred by
the
Trustee in connection with such misuse). If the Master Servicer or the Trustee
has been advised that it is likely that the laws of the state in which action
is
to be taken prohibit such action if taken in the name of the Trustee or that
the
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, the Master Servicer shall join
with the Trustee in the appointment of a co-trustee pursuant to
Section 9.10 hereof. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in those
instances where it is taking action authorized pursuant to this Agreement to
be
taken by it in the name of the Trustee, be deemed to be the agent of the
Trustee.
Section
4.05 Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the Servicing Agreement and to the extent the Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicer to enforce such clauses in accordance with the Servicing Agreement.
If
applicable law prohibits the enforcement of a due-on-sale clause or such clause
is otherwise not enforced in accordance with the Servicing Agreement, and,
as a
consequence, a Mortgage Loan is assumed, the original Mortgagor may be released
from liability in accordance with the Servicing Agreement.
Section
4.06 Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
The
Master Servicer shall transmit and the Servicer (to the extent required under
the Servicing Agreement) shall transmit to the Trustee or Custodian such
documents and instruments coming into the possession of the Master Servicer
or
the Servicer from time to time as are required by the terms hereof or in the
case of the Servicer, the Servicing Agreement, to be delivered to the Trustee
or
the Custodian. Any funds received by the Master Servicer in respect of any
Mortgage Loan or which otherwise are collected by the Master Servicer or the
Servicer as Liquidation Proceeds, Insurance Proceeds or Subsequent Recoveries
in
respect of any Mortgage Loan shall be held for the benefit of the Trustee and
the Certificateholders subject to the Master Servicer’s right to retain or
withdraw from the Distribution Account the Master Servicing Compensation and
other amounts provided in this Agreement, and to the right of the Servicer
to
retain its Servicing Fee and other amounts as provided in the Servicing
Agreement. The Master Servicer shall (and to the extent provided in the
Servicing Agreement) cause the Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations, banks
or insurance companies, the OTS, the FDIC and the supervisory agents and
examiners of such Office and Corporation or examiners of any other federal
or
state banking or insurance regulatory authority if so required by applicable
regulations of the OTS or other regulatory authority, such access to be afforded
without charge but only upon reasonable request in writing and during normal
business hours at the offices of the Master Servicer designated by it. In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, shall be held by the Master Servicer for and on behalf of the Trustee
and the Certificateholders and shall be and remain the sole and exclusive
property of the Trustee; provided, however, that the Master Servicer and the
Servicer shall be entitled to setoff against, and deduct from, any such funds
any amounts that are properly due and payable to the Master Servicer or the
Servicer under this Agreement.
Section
4.07 Standard
Hazard Insurance and Flood Insurance Policies.
For
each
Mortgage Loan, the Master Servicer shall enforce any obligation of the Servicer
under the Servicing Agreement to maintain or cause to be maintained standard
fire and casualty insurance and, where applicable, flood insurance, all in
accordance with the provisions of the Servicing Agreement. It is understood
and
agreed that such insurance shall be with insurers meeting the eligibility
requirements set forth in the Servicing Agreement and that no earthquake or
other additional insurance is to be required of any Mortgagor or to be
maintained on property acquired in respect of a defaulted loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance.
Pursuant
to Section 3.31, any amounts collected by the Master Servicer or by the
Servicer, under any insurance policies (other than amounts to be applied to
the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with the Servicing Agreement) shall
be
deposited into the Distribution Account, subject to withdrawal pursuant to
Section 3.32. Any
cost
incurred by the Servicer in maintaining any such insurance if the Mortgagor
defaults in its obligation to do so shall be added to the amount owing under
the
Mortgage Loan where the terms of the Mortgage Loan so permit; provided, however,
that the addition of any such cost shall not be taken into account for purposes
of calculating the distributions to be made to Certificateholders and shall
be
recoverable by the Servicer pursuant to the Servicing Agreement.
Section
4.08 Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall enforce (to the extent provided in the Servicing
Agreement) the Servicer’s obligations to prepare and present on behalf of the
Trustee and the Certificateholders all claims under any insurance policies
and
take such actions (including the negotiation, settlement, compromise or
enforcement of the insured’s claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to the Servicer and remitted to the Master Servicer) in respect of such
policies, bonds or contracts shall be promptly deposited in the Distribution
Account upon receipt, except that any amounts realized that are to be applied
to
the repair or restoration of the related Mortgaged Property as a condition
precedent to the presentation of claims on the related Mortgage Loan to the
insurer under any applicable insurance policy need not be so deposited (or
remitted).
Section
4.09 Maintenance
of the Primary Mortgage Insurance Policies.
The
Master Servicer shall not take, or (to the extent within its control) permit
the
Servicer (to the extent such action is prohibited under the Servicing Agreement)
to take, any action that would result in noncoverage under any primary mortgage
insurance policy or any loss which, but for the actions of such Master Servicer
or the Servicer, would have been covered thereunder. The Master Servicer shall
use its best reasonable efforts to enforce Servicer’s obligation (to the extent
required under the Servicing Agreement) to keep in force and effect (to the
extent that the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the Servicing Agreement,
as
applicable. The Master Servicer shall not, and (to the extent within its
control) shall not permit the Servicer (to the extent provided in the Servicing
Agreement) to, cancel or refuse to renew any primary mortgage insurance policy
that is in effect at the date of the initial issuance of the Mortgage Note
and
is required to be kept in force hereunder except in accordance with the
provisions of this Agreement and the Servicing Agreement, as
applicable.
The
Master Servicer agrees to enforce the Servicer’s obligation (to the extent
required under the Servicing Agreement) to present, on behalf of the Trustee
and
the Certificateholders, claims to the insurer under any primary mortgage
insurance policies and, in this regard, to take such reasonable action as shall
be necessary to permit recovery under any primary mortgage insurance policies
respecting defaulted Mortgage Loans. Pursuant to Section 3.31, any amounts
collected by the Master Servicer or the Servicer under any primary mortgage
insurance policies shall be deposited by the Servicer or by the Master Servicer
in the Distribution Account, subject to withdrawal pursuant to
Section 3.32.
Section
4.10 Trustee
to Retain Possession of Certain Insurance Policies and Documents.
The
Trustee or the Custodian, shall retain possession and custody of the originals
(to the extent available) of any primary mortgage insurance policies, or
certificate of insurance if applicable, and any certificates of renewal as
to
the foregoing as may be issued from time to time as contemplated by this
Agreement. Until all amounts distributable in respect of the Certificates have
been distributed in full and the Master Servicer and the Servicer otherwise
have
fulfilled its obligations under this Agreement and the Servicing Agreement,
the
Trustee or the Custodian shall also retain possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions of
this
Agreement and the Custodial Agreement. The Master Servicer shall promptly
deliver or cause to be delivered to the Trustee or the Custodian, upon the
execution or receipt thereof the originals of any primary mortgage insurance
policies, any certificates of renewal, and such other documents or instruments
that constitute Mortgage Loan Documents that come into the possession of the
Master Servicer from time to time.
Section
4.11 Realization
Upon Defaulted Loans.
The
Master Servicer shall enforce the Servicer’s obligation (to the extent required
under the Servicing Agreement) to foreclose upon, repossess or otherwise
comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with the Servicing Agreement.
Section
4.12 Compensation
for the Master Servicer.
As
compensation for its services hereunder, the Master Servicer shall be entitled
to receive the Master Servicing Fee and all income and gain realized from any
investment of funds in the Distribution Account (the “Master Servicing
Compensation”). The Master Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder and shall not be
entitled to reimbursement therefor except as provided in this
Agreement.
The
amount of the Master Servicing Compensation payable to the Master Servicer
in
respect of any Distribution Date shall be reduced in accordance with
Section 4.14.
Section
4.13 REO
Property.
In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall enforce, to the extent provided in the Servicing Agreement, the Servicer’s
obligation to sell, and the Servicer agrees to sell, any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the Servicing Agreement, as applicable. Further, the Master
Servicer shall to the extent provided in the Servicing Agreement, enforce the
Servicer’s obligation to sell any REO Property prior to three (3) years after
the end of the calendar year of its acquisition by REMIC I, unless (i) the
Trustee and the Securities Administrator shall have been supplied with an
Opinion of Counsel to the effect that the holding by the Trust Fund of such
REO
Property subsequent to such three-year period will not result in the imposition
of taxes on “prohibited transactions” of any REMIC hereunder as defined in
Section 860F of the Code or cause any REMIC hereunder to fail to qualify as
a REMIC at any time that any Certificates are outstanding, in which case the
Trust Fund may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel) or (ii) the Servicer shall
have
applied for, prior to the expiration of such three-year period, an extension
of
such three-year period in the manner contemplated by Section 856(e)(3) of
the Code, in which case the three-year period shall be extended by the
applicable extension period. The Master Servicer shall to the extent provided
in
the Servicing Agreement, cause the Servicer to protect and conserve, such REO
Property in the manner and to the extent required by the Servicing Agreement,
in
accordance with the REMIC Provisions and in a manner that does not result in
a
tax on “net income from foreclosure property” or cause such REO Property to fail
to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code.
The
Master Servicer shall enforce, to the extent required by the Servicing
Agreement, the Servicer’s obligation to deposit all funds collected and received
in connection with the operation of any REO Property in the Custodial Account
maintained by the Servicer.
The
Master Servicer and the Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
and Master Servicing Fees from Liquidation Proceeds received in connection
with
the final disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Master Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income
or
other net amounts derived from such REO Property.
Section
4.14 Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
The
Master Servicer shall deposit in the Distribution Account not later than each
Distribution Date an amount equal to the lesser of (i) the aggregate amounts
required to be paid by the Servicer under the Servicing Agreement with respect
to Prepayment Interest Shortfalls on the Mortgage Loans for the related
Distribution Date, and not so paid by the Servicer and (ii) the Master Servicing
Compensation for such Distribution Date without reimbursement
therefor.
ARTICLE
V
ADVANCES
AND DISTRIBUTIONS
Section
5.01 Advances.
If
the
Scheduled Payment on a Mortgage Loan or a portion thereof is delinquent as
of
its Due Date, other than as a result of interest shortfalls due to bankruptcy
proceedings or application of the Relief Act, and the Servicer fails to make
an
advance of the delinquent amount pursuant to the Servicing Agreement, then
the
Trustee (in its capacity as Successor Servicer) shall deposit in the
Distribution Account on the Remittance Date on which such Advance was required
to be remitted by the Servicer, from its own funds an amount equal to such
delinquency, net of the Servicing Fee for such Mortgage Loan except to the
extent the Trustee determines any such advance to be nonrecoverable from
Liquidation Proceeds, Insurance Proceeds, or future payments on the Mortgage
Loan for which such Advance was made; provided, however, that if the Trustee
is
prohibited by law or regulation from obligating itself to make advances
regarding delinquent mortgage loans, then the Trustee shall not be obligated
to
make Advances pursuant to this Section 5.01; and provided further, that any
failure to perform such duties or responsibilities caused by the Servicer’s
failure to provide information required by the Trustee in connection with the
making of any such required Advance shall not be considered a default by the
Trustee as successor to the Servicer; provided, however, that (1) it is
understood and acknowledged by the parties hereto that there will be a period
of
transition (not to exceed 90 days) before the actual servicing functions can
be
fully transferred to the Trustee or any Successor Servicer and (2) any failure
to perform such duties or responsibilities caused by the Servicer’s failure to
provide information required by the Trustee in connection with the making of
any
such Advance shall not be considered a default by the Trustee as successor
to
the Servicer.
Section
5.02 Compensating
Interest Payments.
In
the
event that there is a Prepayment Interest Shortfall arising from a voluntary
Principal Prepayment in full by the Mortgagor with respect to any Mortgage
Loan,
the Servicer shall, to the extent of the Servicing Fee for such Distribution
Date, deposit into the Custodial Account, no later than the close of business
on
the Remittance Date immediately preceding such Distribution Date, an amount
equal to the Prepayment Interest Shortfall; and in case of such deposit, the
Servicer shall not be entitled to any recovery or reimbursement from the
Depositor, the Trustee, the Sponsor, the Trust Fund, the Master Servicer or
the
Certificateholders. In the event that the Servicer fails to make such payments,
the Master Servicer shall deposit in the Distribution Account not later than
each Distribution Date an amount equal to the lesser of (i) the aggregate
amounts required to be paid by the Servicer under the Servicing Agreement with
respect to Prepayment Interest Shortfalls on the Mortgage Loans for the related
Distribution Date, and (ii) the Master Servicing Compensation for such
Distribution Date without reimbursement therefor.
Section
5.03 REMIC
Distributions.
On
each
Distribution Date the Securities Administrator, shall be deemed to allocate
distributions to the REMIC I Regular Interests in accordance with
Section 5.07 hereof.
Section
5.04 Distributions.
(a) On
each
Distribution Date, the Available Distribution Amount for such Distribution
Date
shall be withdrawn by the Securities Administrator to the extent of funds on
deposit in the Distribution Account, in the following order of
priority:
First,
in the
following order of priority:
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1.
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from
the Interest Remittance Amount to the holders of the Senior Certificates
on a pro rata basis, based on the entitlement of each such Class,
the
Senior Interest Distribution Amount for each such Class and for such
Distribution Date;
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2.
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to
the extent of the Interest Remittance Amount remaining after distribution
of the Senior Interest Distribution Amount to the Holders of the
Senior
Certificates, to
the Holders
of
the Class M-1 Certificates, the Interest Distribution Amount for
such
Class for such Distribution Date;
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3.
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to
the extent of the Interest Remittance Amount remaining after distribution
of the Senior Interest Distribution Amount to the Holders
of
the Senior Certificates and the Interest Distribution Amount to
Holders
of
the Class M-1 Certificates, to the Holders
of
the Class M-2 Certificates, the Interest Distribution Amount for
such
Class for such Distribution Date;
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4.
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to
the extent of the Interest Remittance Amount remaining after distribution
of the Senior Interest Distribution Amount to the Holders of the
Senior
Certificates, the Interest Distribution Amount to the Holders of
the Class
M-1 Certificates and the Interest Distribution Amount to the Holders
of
the Class M-2 Certificates, to the Holders of the Class M-3 Certificates,
the Interest Distribution Amount for such Class for such Distribution
Date;
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5.
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to
the extent of the Interest Remittance Amount remaining after distribution
of the Senior Interest Distribution Amount to the Holders of the
Senior
Certificates, the Interest Distribution Amount to the Holders of
the Class
M-1 Certificates, the
Interest Distribution Amount to the Holders of the Class M-2
Certificates
and the Interest Distribution Amount to the Holders of the Class
M-3
Certificates, to the Holders of the Class M-4 Certificates, the Interest
Distribution Amount for such Class for such Distribution
Date;
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Second,
to pay
principal on the Certificates, to the extent of the Principal Distribution
Amount for each Distribution Date, in the following amount and order of
priority:
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1.
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The
Senior Principal Distribution Amount for such Distribution Date will
be
distributed to the Senior Certificates as follows:
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first,
to the Class A-6 Certificates, in an amount up to the Class A-6 Lockout
Principal Distribution Amount for such Distribution Date, until the
Certificate Principal Balance thereof has been reduced to zero;
and
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second,
any remaining Senior Principal Distribution Amount after the distribution
described in clause first above, sequentially:
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· to
the Class A-1 Certificates, until the Certificate Principal Balance
of
each such Class has been reduced to zero;
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· to
the Class A-2 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
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· to
the Class A-3 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
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· to
the Class A-4 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
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· to
the Class A-5 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; and
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· to
the Class A-6 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero.
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provided,
however, on any Distribution Date after the Certificate Principal Balances
of
the Mezzanine Certificates have been reduced to zero, distributions of principal
to the Senior Certificates will be allocated among such Senior Certificates
concurrently on a pro rata basis, based on the Certificate Principal Balances
thereof, until the Certificate Principal Balance of each such Class has been
reduced to zero.
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2.
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To
the extent of any Principal Distribution Amount remaining after
distribution of the Senior Principal Distribution Amount to the
Holders
of
the Senior Certificates on such Distribution Date, to the Class M-1
Certificates, in an amount equal to the Class M-1 Principal Distribution
Amount for such Distribution Date, until the Certificate Principal
Balance
thereof has been reduced to zero.
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3.
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To
the extent of any Principal Distribution Amount remaining after
distribution of the Senior Principal Distribution Amount to the
Holders
of
the Senior Certificates on such Distribution Date and the distribution
of
the Class M-1 Principal Distribution Amount to the Holders
of
the Class M-1 Certificates on such Distribution Date, to the Class
M-2
Certificates, in an amount equal to the Class M-2 Principal Distribution
Amount for such Distribution Date, until the Certificate Principal
Balance
thereof has been reduced to zero.
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4.
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To
the extent of any Principal Distribution Amount remaining after
distribution of the Senior Principal Distribution Amount to the
Holders
of
the Senior Certificates on such Distribution Date, the distribution
of the
Class M-1 Principal Distribution Amount to the Holders
of
the Class M-1 Certificates on such Distribution Date and the distribution
of the Class M-2 Principal Distribution Amount to the Holders
of
the Class M-2 Certificates on such Distribution Date, to the Class
M-3
Certificates in an amount equal to the Class M-3 Principal Distribution
Amount for such Distribution Date, until the Certificate Principal
Balance
thereof has been reduced to zero.
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5.
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To
the extent of any Principal Distribution Amount remaining after
distribution of the Senior Principal Distribution Amount to the
Holders
of
the Senior Certificates on such Distribution Date, the distribution
of the
Class M-1 Principal Distribution Amount to the Holders
of
the Class M-1 Certificates on such Distribution Date, the distribution
of
the Class M-2 Principal Distribution Amount to the Holders
of
the Class M-2 Certificates on such Distribution Date and the distribution
of the Class M-3 Principal Distribution Amount to the Holders
of
the Class M-3 Certificates on such Distribution Date, to the Class
M-4
Certificates in an amount equal to the Class M-4 Principal Distribution
Amount for such Distribution Date, until the Certificate Principal
Balance
thereof has been reduced to zero.
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Third,
after
the payment of interest and principal to the Certificates as described in
clauses First
and
Second
above,
any Net Monthly Excess Cashflow for such Distribution Date will be distributed
as follows:
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1.
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To
the Holders of the Publicly Offered Certificates in an amount equal
to any
Extra Principal Distribution Amount for such Distribution Date, payable
to
such Holders as part of the Principal Distribution Amount in accordance
with clause Second
above;
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2.
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To
the Holders of the Class M-1 Certificates, then to the Holders of
the
Class M-2 Certificates, then to the Holders of the Class M-3 Certificates
and then to the Holders of the Class M-4 Certificates, the related
Interest Carry Forward Amount for each such Class and such Distribution
Date;
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3.
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To
the Net WAC Reserve Fund, in respect of the Senior Certificates,
an amount
equal to (i) with respect to the Senior Certificates (other than
the Class
A-1 Certificates), the sum of the related Net WAC Rate Carryover
Amounts,
if any, for each such Class for such Distribution Date or any prior
Distribution Dates and (ii) with respect to the Class A-1 Certificates,
the amount by which the sum of the Net WAC Rate Carryover Amounts
with
respect to the Class A-1 Certificates exceeds the amount received
by the
Securities Administrator with respect to the Cap Contract for such
Distribution Date or any prior Distribution Date;
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4.
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To
the Net WAC Reserve Fund, in respect of the Class M-1 Certificates,
the
Net WAC Rate Carryover Amount for such Class for such Distribution
Date or
any prior Distribution Dates to the extent unpaid;
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5.
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To
the Net WAC Reserve Fund, in respect of the Class M-2 Certificates,
the
Net WAC Rate Carryover Amount for such Class for such Distribution
Date or
any prior Distribution Dates to the extent unpaid;
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6.
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To
the Net WAC Reserve Fund, in respect of the Class M-3 Certificates,
the
Net WAC Rate Carryover Amount for such Class for such Distribution
Date or
any prior Distribution Dates to the extent unpaid;
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7.
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To
the Net WAC Reserve Fund, in respect of the Class M-4 Certificates,
the
Net WAC Rate Carryover Amount for such Class for such Distribution
Date or
any prior Distribution Dates to the extent unpaid;
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8.
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To
the Holders of the Class X Certificates, the Class X Distribution
Amount;
and
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9.
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To
the Holders of the Class R Certificates, in respect of the Class
R-2
Interest, any remaining amounts.
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On
each
Distribution Date, the Securities Administrator, after making the required
distributions of interest and principal to the Certificates as described in
clauses First
and
Second
above
and
after the distribution of the Net Monthly Excess Cashflow as described in clause
Third
above,
will withdraw from the Net WAC Reserve Fund the amounts on deposit therein
and
distribute such amounts to the Senior Certificates and the Mezzanine
Certificates in respect of any Net WAC Rate Carryover Amounts due to each such
Class in the following manner and order of priority: first, concurrently to
the
Senior Certificates, on a pro rata basis, based on the entitlement of each
such
Class, the related Net WAC Rate Carryover Amount (after taking into account
payments made pursuant to the Cap Contract with respect to the Class A-1
Certificates) for such Distribution Date for each such Class; second, to the
Class M-1 Certificates, the related Net WAC Rate Carryover Amount for such
Distribution Date for such Class; third, to the Class M-2 Certificates, the
related Net WAC Rate Carryover Amount for such Distribution Date for such Class;
fourth, to the Class M-3 Certificates, the related Net WAC Rate Carryover Amount
for such Distribution Date for such Class and fifth, to the Class M-4
Certificates, the related Net WAC Rate Carryover Amount for such Distribution
Date for such Class.
On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and deposited
in
the Distribution Account will be withdrawn from such Distribution Account and
distributed by the Securities Administrator to the Class P Certificates and
shall not be available for distribution to the Holders of any other Class of
Certificates. The payment of such Prepayment Charges shall not reduce the
Certificate Principal Balance of the Class P Certificates.
On
the
Distribution Date in August 2011, the Securities Administrator shall make a
payment of principal to the Class P Certificates in reduction of the Certificate
Principal Balance thereof from amounts on deposit in a separate reserve account
established and maintained by the Securities Administrator for the exclusive
benefit of the Class P Certificateholders.
(b) Subject
to Section 10.02 hereof respecting the final distribution on a Class of
Publicly Offered Certificates, on each Distribution Date the Securities
Administrator shall make distributions to each Holder of a Publicly Offered
Certificate of record on the preceding Record Date either by wire transfer
in
immediately available funds to the account of such holder at a bank or other
entity having appropriate facilities therefor, if (i) such Holder has so
notified the Securities Administrator at least five (5) Business Days prior
to
the related Record Date and (ii) such Holder shall hold Regular Certificates
with aggregate principal denominations of not less than $1,000,000 or evidencing
a Percentage Interest aggregating ten percent (10%) or more with respect to
such
Class or, if not, by check mailed by First Class Mail to such Certificateholder
at the address of such holder appearing in the Certificate Register.
Notwithstanding the foregoing, but subject to Section 10.02 hereof
respecting the final distribution, distributions with respect to Publicly
Offered Certificates registered in the name of a Depository shall be made to
such Depository in immediately available funds.
Section
5.05 Allocation
of Realized Losses.
(a) On
or
prior to each Determination Date, the Securities Administrator shall determine
the amount of any Realized Loss in respect of each Mortgage Loan that occurred
during the immediately preceding calendar month, based solely on the reports
delivered by the Servicer pursuant to the Servicing Agreement.
(b) The
interest portion of Realized Losses shall be allocated to the Certificates
as
described in Section 1.02 hereof.
(c) The
principal portion of all Realized Losses on the Mortgage Loans allocated to
any
REMIC I Regular Interest pursuant to Section 5.05(d) shall be
allocated on each Distribution Date as follows: first, in reduction of the
Net
Monthly Excess Cashflow; second, to the Class X Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; third, to the
Class M-4 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; fourth, to the Class M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; fifth, to the Class M-2
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; and sixth, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero. All such Realized Losses
to
be allocated to the Certificate Principal Balances of the Mezzanine Certificates
on any Distribution Date shall be so allocated after the actual distributions
to
be made on such date as provided above. All references above to the Certificate
Principal Balance of any Class of Mezzanine Certificates shall be to the
Certificate Principal Balance of such Class immediately prior to the relevant
Distribution Date, before reduction thereof by any Realized Losses, in each
case
to be allocated to such Mezzanine Certificates, on such Distribution
Date.
Any
allocation of the principal portion of Realized Losses to a Mezzanine
Certificate on any Distribution Date shall be made by reducing the Certificate
Principal Balance thereof by the amount so allocated; any allocation of Realized
Losses to the Class X Certificates shall be made by reducing the amount
otherwise payable in respect thereof pursuant to Section 5.04(a) clause
Third.
No
allocations of any Realized Losses shall be made to the Certificate Principal
Balances of the Senior Certificates or Class P Certificates.
All
such
Realized Losses and all other losses allocated to a Class of Certificates
hereunder will be allocated among the Certificates of such Class in proportion
to the Percentage Interests evidenced thereby.
(d) The
principal portion of all Realized Losses on the Mortgage Loans shall be
allocated on each Distribution Date to the following REMIC I Regular
Interests in the specified percentages, as follows: first, to Uncertificated
Accrued Interest payable to the REMIC I Regular Interest LT-AA and
REMIC I Regular Interest LT-ZZ up to an aggregate amount equal to the
REMIC I Interest Loss Allocation Amount, 98% and 2%, respectively; second,
to the Uncertificated Principal Balances of the REMIC I Regular Interest LT-AA
and REMIC I Regular Interest LT-ZZ up to an aggregate amount equal to the REMIC
I Principal Loss Allocation Amount, 98% and 2%, respectively; third, to the
Uncertificated Principal Balances of REMIC I Regular Interest LT-AA, REMIC
I
Regular Interest LT-M4 and REMIC I Regular Interest LT-ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC I Regular
Interest LT-M3 has been reduced to zero; fourth, to the Uncertificated Principal
Balances of REMIC I Regular Interest LT-AA, REMIC I Regular Interest LT-M3
and
REMIC I Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC I Regular Interest LT-M3 has been
reduced to zero; fifth, to the Uncertificated Principal Balances of REMIC I
Regular Interest LT-AA, REMIC I Regular Interest LT-M2 and REMIC I Regular
Interest LT-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC I Regular Interest LT-M2 has been reduced to zero; and sixth,
to the Uncertificated Principal Balances of REMIC I Regular Interest LT-AA,
REMIC I Regular Interest LT-M1 and REMIC I Regular Interest LT-ZZ, 98%, 1%
and
1%, respectively, until the Uncertificated Principal Balance of REMIC I Regular
Interest LT-M1 has been reduced to zero.
(e) Notwithstanding
anything to the contrary contained herein, if on any Distribution Date the
Securities Administrator discovers, based solely on the reports delivered by
the
Servicer under the Servicing Agreement, that any Subsequent Recoveries have
been
collected by the Servicer with respect to a Mortgage Loan, the amount of such
Subsequent Recoveries will be applied to increase the Certificate Principal
Balance of the Class of Mezzanine Certificates with the highest payment priority
to which Realized Losses have been allocated, but not by more than the amount
of
Realized Losses previously allocated to that Class of Mezzanine Certificates
pursuant to this Section 5.05. The amount of any remaining Subsequent
Recoveries will be applied to sequentially increase the Certificate Principal
Balance of the Mezzanine Certificates, beginning with the Class of Mezzanine
Certificates with the next highest payment priority, up to the amount of such
Realized Losses previously allocated to such Class of Certificates pursuant
to
this Section 5.05. Holders of such Certificates will not be entitled to any
payment in respect of current interest on the amount of such increases for
any
Accrual Period preceding the Distribution Date on which such increase occurs.
Any such increases shall be applied to the Certificate Principal Balance of
each
Mezzanine Certificate of such Class in accordance with its respective Percentage
Interest.
Section
5.06 Reserved.
Section
5.07 Monthly
Statements to Certificateholders.
(a) Not
later
than each Distribution Date, the Securities Administrator shall prepare and
make
available to each Holder of Certificates, the Depositor, the Credit Risk Manager
and the PMI Insurer via its website a statement setting forth the following
information for the Certificates:
(i) the
Interest Accrual Period and general Distribution Dates for each Class of
Certificates;
(ii) the
Pass-Through Rate for each Class of Certificates with respect to the current
Accrual Period;
(iii) the
total
cash flows received and the general sources thereof;
(iv) the
amount of the related distribution to Holders of each Class allocable to
principal, separately identifying (A) the aggregate amount of any Principal
Prepayments included therein, (B) the aggregate of all scheduled payments of
principal included therein, (C) the amount of Prepayment Charges distributed
to
the Class P Certificates and (D) the Extra Principal Distribution
Amount;
(v) the
amount distributed to Holders of each Class on such Distribution Date allocable
to interest;
(vi) the
Certificate Principal Balance or Certificate Notional Balance of each Class
of
Certificates, if applicable, after giving effect (i) to all distributions
allocable to principal on such Distribution Date and (ii) the allocation of
any
Realized Losses for such Distribution Date;
(vii) the
aggregate amount of P&I Advances included in the distributions on the
Distribution Date;
(viii) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(ix) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments by the Servicer pursuant to the
Servicing Agreement or the Master Servicer pursuant to Section 4.14 of this
Agreement;
(x) the
cumulative amount of Realized Losses for the Mortgage Loans to date and, in
addition, if the Certificate Principal Balance of any Class of Certificates
have
been reduced to zero, the cumulative amount of any Realized Losses that have
not
been allocated to any Class of Certificates;
(xi) the
Overcollateralization Amount, the Credit Enhancement Percentage, any
Overcollateralization Increase Amount and any Overcollateralization Reduction
Amount for such Distribution Date;
(xii) the
amount of any Prepayment Charges remitted by the Servicer;
(xiii) the
number, aggregate principal balance, weighted average remaining term to maturity
and weighted average Mortgage Rate of the Mortgage Loans as of the related
Due
Date;
(xiv) the
number and Scheduled Principal Balance of all the Mortgage Loans for the
following Distribution Date;
(xv) the
number and aggregate principal balance of any Mortgage Loans that were (A)
delinquent (exclusive of Mortgage Loans in foreclosure) using the “OTS” method
(1) one scheduled payment is delinquent, (2) two scheduled payments are
delinquent, (3) three scheduled payments are delinquent and (4) foreclosure
proceedings have been commenced, and loss information for the period; the number
and aggregate principal balance of any Mortgage Loans in respect of which (A)
one scheduled payment is delinquent, (B) two scheduled payments are delinquent,
(C) three or more scheduled payments are delinquent and (D) foreclosure
proceedings have been commenced, and loss information for the
period;
(xvi) with
respect to any Mortgage Loan that was liquidated during the preceding calendar
month, the loan number and the Stated Principal Balance of, and Realized Loss
on, such Mortgage Loan as of the close of business on the Determination Date
preceding such Distribution Date;
(xvii) the
total
number and principal balance of any real estate owned or REO Properties as
of
the close of business on the Determination Date preceding such Distribution
Date;
(xviii) the
three
month rolling average of the percent equivalent of a fraction, the numerator
of
which is the aggregate scheduled principal balance of the Mortgage Loans that
are sixty (60) days or more delinquent or are in bankruptcy or foreclosure
or
are REO Properties, and the denominator of which is the scheduled principal
balances of all of the Mortgage Loans as of the last day of such Distribution
Date;
(xix) the
aggregate Servicing Fee received by the Servicer and the Master Servicing Fees
received by the Master Servicer during the related Due Period;
(xx) the
amount of the Credit Risk Management Fees paid to the Credit Risk Manager and/or
the Sponsor for such Distribution Date;
(xxi) the
amount, if any, of other fees or expenses accrued and paid, with an
identification of the payee and the general purpose of such fees;
(xxii) the
amount of any Net WAC Rate Carryover Amounts and the amount in the Net
WAC
Reserve Fund after
all
deposits and withdrawals on such Distribution Date;
(xxiii) whether
the Stepdown Date has occurred and whether any Trigger Event is in
effect;
(xxiv) the
amount of payments received from the Servicer related to claims under the PMI
Policy during the related Prepayment Period (based solely on information
provided by the Servicer);
(xxv) (A)
the
dollar amount of claims made under each PMI Policy that were denied (as
identified by the Servicer) during the Prepayment Period (and the number of
Mortgage Loans to which such denials related) and (B) the dollar amount of
the
cumulative claims made under the PMI Policy that were denied since the Closing
Date (and the number of Mortgage Loans to which such denials related) (based
solely on information provided by the Servicer);
(xxvi) the
PMI
Threshold Percentage for such Distribution Date; and
(xxvii) amounts
payable in respect of the Cap Contract.
The
Securities Administrator may make the foregoing monthly statement (and, at
its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders via the Securities
Administrator’s internet website. The Securities Administrator’s internet
website shall initially be located at “xxx.xxxxxxx.xxx”. Assistance in using the
website can be obtained by calling the Securities Administrator’s customer
service desk at (000) 000-0000. Parties that are unable to use the above
distribution options are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The
Securities Administrator may change the way monthly statements are distributed
in order to make such distributions more convenient or more accessible to the
above parties.
The
Securities Administrator shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing such statement and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(b) The
Securities Administrator’s responsibility for making the above information
available to the Certificateholders is limited to the availability, timeliness
and accuracy of the information provided by the Servicer and the Cap Provider.
The Securities Administrator will make available a copy of each statement
provided pursuant to this Section 5.06 to each Rating Agency.
(c) Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall cause to be furnished upon written request to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i) and (a)(ii) of this
Section 5.06 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time
in
effect.
(d) Upon
filing with the Internal Revenue Service, the Securities Administrator shall
furnish to the Holders of the Residual Certificates the applicable Form 1066
and
each applicable Form 1066Q and shall respond promptly to written requests made
not more frequently than quarterly by any Holder of a Residual Certificate
with
respect to the following matters:
(i) The
original projected principal and interest cash flows on the Closing Date on
each
Class of regular and residual interests created hereunder and on the Mortgage
Loans, based on the Prepayment Assumption;
(ii) The
projected remaining principal and interest cash flows as of the end of any
calendar quarter with respect to each Class of regular and residual interests
created hereunder and the Mortgage Loans, based on the Prepayment
Assumption;
(iii) The
applicable Prepayment Assumption and any interest rate assumptions used in
determining the projected principal and interest cash flows described
above;
(iv) The
original issue discount (or, in the case of the Mortgage Loans, market discount)
or premium accrued or amortized through the end of such calendar quarter with
respect to each Class of regular or residual interests created hereunder and
to
the Mortgage Loans, together with each constant yield to maturity used in
computing the same;
(v) The
treatment of losses realized with respect to the Mortgage Loans or the regular
interests created hereunder, including the timing and amount of any cancellation
of indebtedness income of a REMIC with respect to such regular interests or
bad
debt deductions claimed with respect to the Mortgage Loans;
(vi) The
amount and timing of any non-interest expenses of a REMIC; and
(vii) Any
taxes
(including penalties and interest) imposed on the REMIC, including, without
limitation, taxes on “prohibited transactions,” “contributions” or “net income
from foreclosure property” or state or local income or franchise
taxes.
The
information pursuant to clauses (i), (ii), (iii) and (iv) above shall be
provided by the Depositor pursuant to Section 9.13.
Section
5.08 REMIC
Designations and REMIC Allocations.
(a) The
Securities Administrator shall elect that each of REMIC I and REMIC II shall
be
treated as a REMIC under Section 860D of the Code. Any inconsistencies or
ambiguities in this Agreement or in the administration of this Agreement shall
be resolved in a manner that preserves the validity of such REMIC elections.
The
REMIC I Regular Interests shall constitute the assets of REMIC II.
(b) On
each
Distribution Date, the Available Distribution Amount, in the following order
of
priority, shall be distributed by REMIC I to REMIC II on account of the REMIC
I
Regular Interests or withdrawn from the Distribution Account and distributed
to
the Holders of the Class R Certificates, as the case may be:
(i) to
Holders of REMIC I Regular Interest LT-AA, REMIC Regular Interest LT-A1, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular Interest
LT-M3, REMIC I Regular Interest LT-M4 and REMIC I Regular Interest LT-ZZ, pro
rata, in an amount equal to (A) the Uncertificated Accrued Interest for each
such REMIC I Regular Interest for such Distribution Date, plus (B) any amounts
in respect thereof remaining unpaid from previous Distribution Dates. Amounts
payable as Uncertificated Accrued Interest in respect of REMIC I Regular
Interest LT-ZZ shall be reduced and deferred when the REMIC I
Overcollateralization Amount is less than the REMIC I Required
Overcollateralization Amount, by the lesser of (x) the amount of such difference
and (y) the REMIC I Regular Interest LT-ZZ Maximum Interest Deferral Amount
and
such amount will be payable to the Holders of REMIC Regular Interest LT-A1,
REMIC Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular
Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0,
REMIC I Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular
Interest LT-M3 and REMIC I Regular Interest LT-M4 in the same proportion as
the
Overcollateralization Increase Amount is allocated to the Corresponding
Certificates and the Uncertificated Principal Balance of REMIC I Regular
Interest LT-ZZ shall be increased by such amount;
(ii) second,
to the Holders of REMIC I Regular Interests, in an amount equal to the remainder
of the Available Distribution Amount for such Distribution Date after the
distributions made pursuant to clause (i) above, allocated as
follows:
(A) 98.00%
of
such remainder (other than amounts payable under clause (c) below) to the
Holders of REMIC I Regular Interest LT-AA and REMIC I Regular Interest LT-P,
until the Uncertificated Principal Balance of such REMIC I Regular Interest
is
reduced to zero, provided, however, that the Uncertificated Principal Balance
of
REMIC I Regular Interest LT-P shall not be reduced until the Distribution Date
in August 2011 or any Distribution Date thereafter, at which point such amount
shall be distributed to REMIC I Regular Interest LT-P, until $100 has been
distributed pursuant to this clause;
(B) 2.00%
of
such remainder (other than amounts payable under clause (c) below, first, to
the
Holders of REMIC I Regular Xxxxxxxx XX-X0, REMIC Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Interest LT-M1, REMIC
I
Regular Interest LT-M2, REMIC I Regular Interest LT-M3 and REMIC I Regular
Interest LT-M4, 1.00%, in the same proportion as principal payments are
allocated to the Corresponding Certificates, until the Uncertificated Principal
Balances of such REMIC I Regular Interests are reduced to zero and second,
to
the Holders of REMIC I Regular Interest LT-ZZ until the Uncertificated Principal
Balance of such REMIC I Regular Interest is reduced to zero; then
(iii) any
remaining amount to the Holders of the Class R Certificates;
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Overcollateralization Reduction Amount shall be allocated
to
Holders of (i) REMIC I Regular Interest LT-AA and REMIC I Regular Interest
LT-P,
in that order and (ii) REMIC I Regular Interest LT-ZZ, respectively; provided
that REMIC I Regular Interest LT-P shall not be reduced until the Distribution
Date in August 2011, at which point such amount shall be distributed to REMIC
I
Regular Interest LT-P, until $100 has been distributed pursuant to this
clause.
Section
5.09 Prepayment
Charges.
(a) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and deposited
in
the Distribution Account will be withdrawn from the Distribution Account and
distributed by the Securities Administrator to the Class P Certificates and
shall not be available for distribution to the holders of any other Class of
Certificates. The payment of such Prepayment Charges shall not reduce the
Certificate Principal Balance of the Class P Certificates.
(b) The
Master Servicer shall not be obligated to recalculate or verify Prepayment
Charges collected by the Servicer and remitted to the related Deposit Account
for distribution to the related Certificateholders.
Section
5.10 Class
P Certificate Account.
The
Securities Administrator shall establish and maintain with itself a separate,
segregated trust account titled “Xxxxx Fargo Bank, N.A., for the benefit of
Nomura Asset Acceptance Corporation, Alternative Loan Trust 2006-WF1 Class
P
Certificate Account”. On the Closing Date, the Depositor will deposit, or cause
to be deposited in the Class P Certificate Account $100.00. The amount on
deposit in the Class P Certificate Account shall be held uninvested. On the
Distribution Date in August 2011, the Securities Administrator shall withdraw
the amount on deposit in the Class P Certificate Account and remit such amount
to the Holders of the Class P Certificates, in reduction of the Certificate
Principal Balance thereof.
Section
5.11 Net
WAC Reserve Fund.
(a) The
Securities Administrator shall establish a Net WAC Reserve Fund on behalf of
the
holders of the Publicly Offered Certificates. The Net WAC Reserve Fund must
be
an Eligible Account. The Net WAC Reserve Fund shall be entitled “Net WAC Reserve
Fund, Xxxxx Fargo Bank, National Association for the benefit of holders of
Nomura Asset Acceptance Corporation, Mortgage Pass-Through Certificates, Series
2006-WF1, Class A-1, Class X-0, Xxxxx X-0, Class A-4, Class X-0, Xxxxx X-0,
Class M-1, Class M-2, Class M-3 and Class M-4”. Any payments received by the
Securities Administrator under the Cap Contract shall be deposited into the
Net
WAC Reserve Fund for the benefit of the Class A-1 Certificates. On the Closing
Date, the Depositor will deposit, or cause to be deposited, into the Net WAC
Reserve Fund $5,000. On each Distribution Date as to which there is a Net WAC
Rate Carryover Amount payable to any Class of Certificates, the Securities
Administrator shall deposit the amounts pursuant to paragraphs 3, 4, 5, 6 and
7
of clause Third
of
Section 5.04(a) into the Net WAC Reserve Fund and the Securities
Administrator has been directed by the Class X Certificateholder to distribute
such amounts to the Holders of the Publicly Offered Certificates in the amounts
and priorities set forth in clause Third
of
Section 5.04(a).
(b) The
Net
WAC Reserve Fund is an “outside reserve fund” within the meaning of Treasury
Regulation §1.860G-2(h) and shall be an asset of the Trust Fund but not an asset
of any REMIC. The Securities Administrator on behalf of the Trust Fund shall
be
the nominal owner of the Net WAC Reserve Fund. The Class X Certificateholders
shall be the beneficial owners of the Net WAC Reserve Fund, subject to the
power
of the Securities Administrator to transfer amounts under Section 5.04(a).
Amounts in the Net WAC Reserve Fund shall be held either uninvested in a trust
or deposit account of the Securities Administrator with no liability for
interest or other compensation thereof or, at the written direction of the
Majority Class X Certificateholder, be invested in Permitted Investments that
mature no later than the Business Day prior to the next succeeding Distribution
Date. All net income and gain from such investments shall be distributed to
the
Majority Class X Certificateholder, not as a distribution in respect of any
interest in any REMIC (pursuant to Section 5.08). All amounts earned on amounts
on deposit in the Net WAC Reserve Fund shall be taxable to the Majority Class
X
Certificateholder. Any losses on such investments shall be deposited in the
Net
WAC Reserve Fund by the Majority Class X Certificateholder out of its own funds
immediately as realized. In the event that the Majority Class X
Certificateholder shall fail to provide investment instructions to the
Securities Administrator, the amounts on deposit in the Net WAC Reserve Fund
shall be held uninvested.
(c) For
federal tax return and information reporting, the value of the right of the
holder of the Class A-1 Certificates to receive payments from the Net WAC
Reserve Fund shall be $9,000.00 and the amount allocated to the right of the
holders of the Publicly Offered Certificates (other than the Class A-1
Certificates) to receive payments from the Net WAC Reserve Fund in respect
of
any Net WAC Rate Carryover Amount shall be zero.
Section
5.12 Reports
Filed with Securities and Exchange Commission.
(a) (i)For
so
long as the Trust Fund is subject to Exchange Act reporting requirements, within
fifteen (15) days after each Distribution Date (subject to permitted extensions
under the Exchange Act), the Securities Administrator shall prepare and file
on
behalf of the Trust Fund any Form 10-D required by the Exchange Act, in form
and
substance as required by the Exchange Act. The Securities Administrator shall
file each Form 10-D with a copy of the related Monthly Statement attached
thereto. Any disclosure in addition to the Monthly Statement that is required
to
be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be reported
to the Depositor and the Securities Administrator by the entity indicated on
Exhibit N and approved by the Depositor pursuant to the following paragraph.
The
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure, except
as
set forth in the next paragraph.
(ii) As
set
forth on Exhibit N hereto, within five (5) calendar days after the related
Distribution Date, (i) each Transaction Party shall be required to provide
to
the Securities Administrator and to the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible form, or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Additional Form 10-D Disclosure, if applicable, together
with an Additional Disclosure Notification in the form of Exhibit H hereto
(an
“Additional Disclosure Notification”) and (ii) the Depositor will approve, as to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible
for any reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a copy of the Form 10-D to the Depositor (provided that such
Form
10-D includes any Additional Form 10-D Disclosure). Within two (2) calendar
days
after receipt of such copy, but no later than the twelfth (12th) calendar day
after the Distribution Date, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval, the Securities Administrator shall be entitled to assume
that such Form 10-D is in final form and the Securities Administrator may
proceed with the execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer shall sign each Form 10-D. If a Form
10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Securities Administrator will follow the procedures set forth in Section
5.12(c)(ii). Promptly (but no later than one (1) Business Day) after filing
with
the Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D filed by the Securities
Administrator. Each party to this Agreement acknowledges that the performance
by
the Master Servicer and the Securities Administrator of its duties under this
Section 5.12(a) related to the timely preparation, execution and filing of
Form
10-D is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties as set forth in this Agreement. Neither
the
Master Servicer nor the Securities Administrator shall have any liability for
any loss, expense, damage, claim arising out of or with respect to any failure
to properly prepare, execute and/or timely file such Form 10-D, where such
failure results from the Securities Administrator’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
Each
of
Form 10-D and Form 10-K requires the registrant to indicate (by checking “yes”
or “no”) that it “(1) has filed all reports required to be filed by Section 13
or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been
subject to such filing requirements for the past 90 days.” The Depositor hereby
represents to the Securities Administrator that the Depositor has filed all
such
required reports during the preceding 12 months and that it has been subject
to
such filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the fifth calendar day after
the related Distribution Date with respect to the filing of a report on Form
10-D and no later than March 15th
with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such
report.
(b) (i)For
so
long as the Trust Fund is subject to Exchange Act reporting requirements, within
four (4) Business Days after the occurrence of an event set forth on Exhibit
N
hereto or such other event requiring disclosure on Form 8-K (each such event,
a
“Reportable
Event”),
or if
requested by the Depositor, and subject to receipt of such information by the
Securities Administrator from the entity indicated on Exhibit N as the
responsible party for providing that information, the Securities Administrator
shall prepare and file on behalf of the Trust Fund any Form 8-K, as required
by
the Exchange Act, provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K other than the initial
Form 8-K (“Form
8-K Disclosure Information”)
shall
be reported by the parties set forth on Exhibit
N
to the
Depositor and the Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth in
the
next paragraph.
(ii) As
set
forth on Exhibit N hereto, for so long as the Trust is subject to the Exchange
Act reporting requirements, no later than the close of business (New York City
time) on the second (2nd) Business Day after the occurrence of a Reportable
Event (i) the parties to this transaction shall be required to provide to the
Securities Administrator and to the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible form, or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Form 8-K Disclosure Information, if applicable, together
with an Additional Disclosure Notification and (ii) the Depositor will approve,
as to form and substance, or disapprove, as the case may be, the inclusion
of
the Form 8-K Disclosure Information. The Depositor will be responsible for
any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Depositor. Promptly, but no later
than the close of business on the third (3rd) Business Day after the Reportable
Event, the Depositor shall notify the Securities Administrator in writing (which
may be furnished electronically) of any changes to or approval of such Form
8-K.
In the absence of receipt of any written changes or approval, the Securities
Administrator shall be entitled to assume that such Form 8-K is in final form
and the Securities Administrator may proceed with the execution and filing
of
the Form 8-K. A duly authorized representative of the Master Servicer shall
sign
each Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed
Form 8-K needs to be amended, the Securities Administrator will follow the
procedures set forth in Section 5.12(c)(ii). Promptly (but no later than 1
Business Day) after filing with the Commission, the Securities Administrator
will, make available on its internet website a final executed copy of each
Form
8-K that it has filed. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Section 5.12(b) related to the timely preparation, execution
and filing of Form 8-K is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under this Agreement.
Neither the Master Servicer nor the Securities Administrator shall have any
liability for any loss, expense, damage, claim arising out of or with respect
to
any failure to properly prepare, execute and/or timely file such Form 8-K,
where
such failure results from the Securities Administrator’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
(c) (i)On
or
prior to January 30 of the first year in which the Securities Administrator
is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 Suspension Notification relating to the automatic suspension
of reporting in respect of the Trust Fund under the Exchange Act.
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly notify electronically the Depositor. In the case of Form 10-D and
10-K,
the parties to this Agreement will cooperate to prepare and file a Form 12b-25
and a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange
Act. In the case of Form 8-K, the Securities Administrator will, upon receipt
of
all required Form 8-K Disclosure Information and upon the approval and direction
of the Depositor, include such disclosure information on the next Form 10-D.
In
the event that any previously filed Form 8-K, 10-D or 10-K needs to be amended
in connection with any Additional Form 10-D Disclosure (other than for the
purpose of restating any monthly report), Additional Form 10-K Disclosure or
Form 8-K Disclosure Information, the Securities Administrator will
electronically notify the Depositor and such other parties to the transaction
as
are affected by such amendment, and such parties will cooperate to prepare
any
necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment
to
Form 8-K, 10-D or 10-K shall be signed by a duly authorized representative,
or
senior officer in charge of master servicing, as applicable, of the Master
Servicer. The parties to this Agreement acknowledge that the performance by
the
Master Servicer and the Securities Administrator of its duties under this
Section 5.12(c) related to the timely preparation, execution and filing of
Form
15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon
each such party performing its duties under this Section. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file any such Form 15, Form 12b-25 or any
amendments to Forms 8-K, 10-D or 10-K, where such failure results from the
Securities Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 15, Form 12b-25 or any amendments to
Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
(d) (i)For
so
long as the trust is subject to Exchange Act reporting requirements, within
ninety (90) days after the end of each calendar year or such earlier date as
may
be required by the Exchange Act (the “10-K
Filing Deadline”),
(it
being understood that the fiscal year for the trust ends on December 31 of
each
year) commencing in March 2007, the Securities Administrator shall prepare
and
file on behalf of the Trust Fund a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items,
in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, (i) an annual
compliance statement for each Servicing Function Participant (other than the
Custodian), as described under Section 3.13, (ii)(A) the annual reports on
assessment of compliance with servicing criteria for each Servicing Function
Participant, as described under Section 3.14 and the Custodial Agreement, and
(B) if any Servicing Function Participant’s report on assessment of compliance
with servicing criteria described under Section 3.14 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any Servicing Function Participant’s report on assessment
of compliance with servicing criteria described under Section 3.14 is not
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included, (iii)(A) the
registered public accounting firm attestation report for each Servicing Function
Participant, as described under Section 3.14, and (B) if any registered public
accounting firm attestation report described under Section 3.14 identifies
any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(iv) a Xxxxxxxx-Xxxxx Certification as described in Section 3.18. Any disclosure
or information in addition to (i) through (iv) above that is required to be
included on Form 10-K as set forth on Exhibit N under Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be reported to the Depositor and the Securities Administrator by the parties
set
forth on Exhibit N, and shall be approved by the Depositor pursuant to the
following paragraph. The Securities Administrator will have no duty or liability
for any failure hereunder to determine or prepare any Additional Form 10-K
Disclosure, except as set forth in the next paragraph.
(ii) As
set
forth on Exhibit N hereto, no later than March 15 of each year that the Trust
is
subject to the Exchange Act reporting requirements, commencing in 2007, (i)
each
Transaction Party shall be required to provide to the Securities Administrator
and to the Depositor, to the extent known by a responsible officer thereof,
in
XXXXX-compatible form, or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
on Form 10-K pursuant to this paragraph.
(iii) After
preparing the Form 10-K, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 10-K to the Depositor. Within three
(3) Business Days after receipt of such copy, but no later than March 25th,
the
Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K.
In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-D, the Securities Administrator shall
be
entitled to assume that such Form 10-K is in final form and the Securities
Administrator may proceed with the execution and filing of the Form 10-K. A
senior officer of the Master Servicer in charge of the master servicing function
shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 5.12(c)(ii). Promptly (but
no
later than one (1) Business Day) after filing with the Commission, the
Securities Administrator will make available on its internet website a final
executed copy of each Form 10-K to be filed by the Securities Administrator.
The
parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of its duties under this Section
5.12(d) related to the timely preparation, execution and filing of Form 10-K
is
contingent upon such parties (and any Servicing Function Participant) strictly
observing all applicable deadlines in the performance of their duties under
this
Section 5.12(d), Section 3.13, Section 3.14 and Section 3.18. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 10-K, where such failure results
from the Securities Administrator’s inability or failure to obtain or receive,
on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-K, not resulting from its
own negligence, bad faith or willful misconduct.
(e) On
each
Distribution Date, the Securities Administrator will calculate the PMI Threshold
Percentage based on information provided by the Servicer and the PMI Insurer.
The PMI Threshold Percentage will be included in the statement to
Certificateholders prepared and made available by the Securities Administrator
pursuant to Section 5.07 of this Agreement. The Depositor will be obligated
to
provide to the Securities Administrator any financial statements of or other
information relating to the PMI Insurer that may be required to be included
in
any Form 10-D, Form 8-K or Form 10-K or written notification instructing the
Securities Administrator that such Additional Disclosure is not necessary for
such Distribution Date. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Securities Administrator in
connection with including any Additional Disclosure information pursuant to
this
Section.
(f) The
Master Servicer, the Depositor, the Custodian, the Sponsor and Securities
Administrator shall indemnify and hold harmless the Depositor, the Trustee
and
their respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of such party’s obligations under this Section 5.12 or such
party’s negligence, bad faith or willful misconduct in connection therewith.
Notwithstanding
the provisions of Section 11.01, this Section 5.12 may be amended without the
consent of the Certificateholders.
Any
notice required to be delivered by the Securities Administrator to the Depositor
pursuant to this Sections 3.13, 3.14, 3.18 or 5.12 shall be delivered by the
Securities Administrator by facsimile and electronic mail to Xxxxxx Xxxx, Esq.
at (000) 000-0000 and xxxxx@xx.xxxxxx.xxx,
with a
copy to Xxxx Xxxxxx at (000) 000-0000 and xxxxxxx@xx.xxxxxx.xxx
and a
copy to N. Xxxxx XxXxxxx at (000) 000-0000 and xxxxxxxx@xx.xxxxxx.xxx.
ARTICLE
VI
THE
CERTIFICATES
Section
6.01 The
Certificates.
(a) The
Certificates shall be substantially in the forms attached hereto as Exhibits
A-1
through A-5. The Certificates shall be issuable in registered form, in the
minimum dollar denominations, integral dollar multiples in excess thereof
(except that one Certificate of each Class may be issued in a different amount
which must be in excess of the applicable minimum dollar denomination) and
aggregate dollar denominations as set forth in the following table:
|
Class
|
Minimum
Denomination
|
Integral
Multiple in Excess of Minimum
|
Original
Certificate Principal Balance
|
Pass-Through
Rate
|
|
A-1
|
$ 25,000
|
$1
|
$ 133,955,000
|
Class
A-1 Pass-Through Rate
|
|
A-2
|
$ 25,000
|
$1
|
$
28,480,000
|
Class
A-2 Pass-Through Rate
|
|
A-3
|
$ 25,000
|
$1
|
$
37,886,000
|
Class
A-3 Pass-Through Rate
|
|
A-4
|
$ 25,000
|
$1
|
$
50,423,000
|
Class
A-4 Pass-Through Rate
|
|
A-5
|
$ 25,000
|
$1
|
$
26,149,000
|
Class
A-5 Pass-Through Rate
|
|
A-6
|
$ 25,000
|
$1
|
$
30,670,000
|
Class
A-6 Pass-Through Rate
|
|
M-1
|
$ 25,000
|
$1
|
$
11,764,000
|
Class
M-1 Pass-Through Rate
|
|
M-2
|
$ 25,000
|
$1
|
$
10,400,000
|
Class
M-2 Pass-Through Rate
|
|
M-3
|
$ 25,000
|
$1
|
$
5,967,000
|
Class
M-3 Pass-Through Rate
|
|
M-4
|
$ 25,000
|
$1
|
$
3,410,000
|
Class
M-4 Pass-Through Rate
|
|
P
|
$
1
|
$1
|
$
100.00
|
N/A
|
|
X
|
$
1
|
$1
|
$
|
Class
X Pass-Through Rate
|
|
R
|
N/A
|
N/A
|
N/A
|
N/A
|
Upon
original issue, the Certificates shall be executed and authenticated by the
Securities Administrator and delivered by the Trustee to and upon the written
order of the Depositor. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trust Fund by the Securities Administrator
by an authorized signatory. Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Securities Administrator shall bind the Trust, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
herein executed by the Securities Administrator by manual signature, and such
certificate of authentication shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their
authentication.
The
Depositor shall provide, or cause to be provided, to the Securities
Administrator on a continuous basis, an adequate inventory of Certificates
to
facilitate transfers.
(b) The
Class
X Certificates and Class P Certificates offered and sold to Qualified
Institutional Buyers in reliance on Rule 144A under the Securities Act (“Rule
144A”) will be issued in the form of Definitive Certificates.
Section
6.02 Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a) The
Securities Administrator shall maintain, or cause to be maintained in accordance
with the provisions of Section 6.09, a Certificate Register for the
Certificates in which, subject to the provisions of subsections (b) and (c)
below and to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Certificates and of
Transfers and exchanges of Certificates as herein provided. Upon surrender
for
registration of Transfer of any Certificate, the Securities Administrator shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class and of like
aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever
any
Certificates are so surrendered for exchange, the Securities Administrator
shall
execute, authenticate, and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by
a
written instrument of Transfer in form satisfactory to the Securities
Administrator duly executed by the holder thereof or his attorney duly
authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
Transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
Transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of Transfer or exchange shall be
canceled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator’s customary
procedures.
(b) No
Transfer of a Private Certificate shall be made unless such Transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under the Securities Act and such state securities laws. In the event that
a
Transfer is to be made in reliance upon an exemption from the Securities Act
and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such Transfer and such
Certificateholder’s prospective transferee shall each certify to the Securities
Administrator in writing the facts surrounding the Transfer in substantially
the
forms set forth in Exhibit E (the “Transferor Certificate”) and (x) deliver a
letter in substantially the form of either Exhibit F (the “Investment Letter”)
or Exhibit G (the “Rule 144A Letter”) or (y) there shall be delivered to the
Securities Administrator an Opinion of Counsel, at the expense of the
transferor, that such Transfer may be made pursuant to an exemption from the
Securities Act, which Opinion of Counsel shall not be an expense of the
Depositor, the Sponsor, the Securities Administrator, the Trustee or the Trust
Fund. The Depositor shall provide to any Holder of a Private Certificate and
any
prospective transferee designated by any such Holder, information regarding
the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for Transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by
Rule
144A. The Securities Administrator shall cooperate with the Depositor in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund
as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect
such
Transfer shall, and does hereby agree to, indemnify the Securities
Administrator, the Depositor and the Sponsor against any liability that may
result if the Transfer is not so exempt or is not made in accordance with such
federal and state laws.
No
Transfer of an ERISA Restricted Certificate shall be made unless the Securities
Administrator shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator to the effect that such transferee
is not an employee benefit plan subject to Section 406 of ERISA and/or a
plan subject to Section 4975 of the Code, or a Person acting on behalf of
any such plan or using the assets of any such plan, or (ii) in the case of
any
such ERISA Restricted Certificate presented for registration in the name of
an
employee benefit plan subject to ERISA, or a plan subject to Section 4975
of the Code (or comparable provisions of any subsequent enactments), or a
trustee of any such plan or any other person acting on behalf of any such plan,
an Opinion of Counsel satisfactory to the Securities Administrator for the
benefit of the Securities Administrator, the Depositor and the Servicer and
on
which they may rely to the effect that the purchase and holding of such ERISA
Restricted Certificate is permissible under applicable law, will not result
in
any prohibited transactions under ERISA or Section 4975 of the Code and
will not subject the Securities Administrator, the Depositor or any Servicer
to
any obligation in addition to those expressly undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Depositor or any Servicer. Notwithstanding anything else
to
the contrary herein, any purported transfer of an ERISA Restricted Certificate
to or on behalf of an employee benefit plan subject to Section 406 of ERISA
and/or a plan subject to Section 4975 of the Code other than in compliance
with the foregoing shall be void and of no effect; provided that the restriction
set forth in this sentence shall not be applicable if there has been delivered
to the Securities Administrator an Opinion of Counsel meeting the requirements
of clause (ii) of the first sentence of this paragraph. The Securities
Administrator shall not be under any liability to any Person for any
registration of transfer of any ERISA Restricted Certificate that is in fact
not
permitted by this Section 6.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement. The Securities Administrator
shall be entitled, but not obligated, to recover from any Holder of any ERISA
Restricted Certificate that was in fact an employee benefit plan subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or
a Person acting on behalf of any such plan at the time it became a Holder or,
at
such subsequent time as it became such a plan or Person acting on behalf of
such
a plan, all payments made on such ERISA Restricted Certificate at and after
either such time. Any such payments so recovered by the Securities Administrator
shall be paid and delivered by the Securities Administrator to the last
preceding Holder of such Certificate that is not such a plan or Person acting
on
behalf of a plan.
Each
beneficial owner of a Mezzanine Certificate or Subordinate Certificate or any
interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of that certificate or interest therein, that either
(i)
it is not a Plan or investing with “Plan Assets”, (ii) it has acquired and is
holding such certificate in reliance on the Exemption, and that it understands
that there are certain conditions to the availability of the Exemption,
including that the certificate must be rated, at the time of purchase, not
lower
than “BBB-“ (or its equivalent) by S&P or Xxxxx’x, and the certificate is so
rated or (iii) (1) it is an insurance company, (2) the source of funds used
to
acquire or hold the certificate or interest therein is an “insurance company
general account,” as such term is defined in Prohibited Transaction Class
Exemption (“PTCE”) 95-60 and (3) the conditions in Sections I and III of PTCE
95-60 have been satisfied.
(c) (i)
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status as a Permitted
Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Residual
Certificate, the Securities Administrator shall require delivery to it, and
shall not register the Transfer of any Residual Certificate until its receipt
of, an affidavit and agreement (a “Transfer Affidavit and Agreement,” in the
form attached hereto as Exhibit D) from the proposed Transferee, in form and
substance satisfactory to the Securities Administrator, representing and
warranting, among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the Residual Certificate
that
is the subject of the proposed Transfer as a nominee, trustee or agent for
any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of this
Section 6.02(d) and agrees to be bound by them.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if an authorized officer of the Securities Administrator
who is assigned to this transaction has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest in a
Residual Certificate and (Y) not to transfer its Ownership Interest unless
it
provides a Transferor Affidavit (in the form attached hereto as Exhibit E)
to
the Securities Administrator stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
(E) Each
Person holding or acquiring an Ownership Interest in a Residual Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the
Securities Administrator written notice that it is a “pass-through interest
holder” within the meaning of temporary Treasury regulation
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Residual Certificate, if it is, or is holding an Ownership
Interest in a Residual Certificate on behalf of, a “pass-through interest
holder.”
(ii) The
Securities Administrator will register the Transfer of any Residual Certificate
only if it shall have received the Transfer Affidavit and Agreement and all
of
such other documents as shall have been reasonably required by the Securities
Administrator as a condition to such registration. In addition, no Transfer
of a
Residual Certificate shall be made unless the Securities Administrator shall
have received a representation letter from the Transferee of such Certificate
to
the effect that such Transferee is a Permitted Transferee.
(iii) (A)
If any
purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 6.02(d), then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights as holder thereof retroactive to the date of registration
of
such Transfer of such Residual Certificate. The Securities Administrator shall
be under no liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 6.02(d)
or for making any payments due on such Certificate to the holder thereof or
for
taking any other action with respect to such holder under the provisions of
this
Agreement.
(B) If
any
purported Transferee shall become a holder of a Residual Certificate in
violation of the restrictions in this Section 6.02(d) and to the extent
that the retroactive restoration of the rights of the holder of such Residual
Certificate as described in clause (iii)(A) above shall be invalid, illegal
or
unenforceable, then the Securities Administrator shall have the right, without
notice to the holder or any prior holder of such Residual Certificate, to sell
such Residual Certificate to a purchaser selected by the Securities
Administrator on such terms as the Securities Administrator may choose. Such
purported Transferee shall promptly endorse and deliver each Residual
Certificate in accordance with the instructions of the Securities Administrator.
Such purchaser may be the Securities Administrator itself or any Affiliate
of
the Securities Administrator. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Securities Administrator or its
Affiliates), expenses and taxes due, if any, will be remitted by the Securities
Administrator to such purported Transferee. The terms and conditions of any
sale
under this clause (iii)(B) shall be determined in the sole discretion of the
Securities Administrator, and the Securities Administrator shall not be liable
to any Person having an Ownership Interest in a Residual Certificate as a result
of its exercise of such discretion.
(iv) The
Securities Administrator shall make available to the Internal Revenue Service
and those Persons specified by the REMIC Provisions all information necessary
to
compute any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of
such Residual Certificate and (B) as a result of any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code that holds an
Ownership Interest in a Residual Certificate having as among its record holders
at any time any Person which is a Disqualified Organization. Reasonable
compensation for providing such information may be charged or collected by
the
Securities Administrator.
(v) The
provisions of this Section 6.02(d) set forth prior to this subsection (v)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Securities Administrator at the expense of the party seeking
to
modify, add to or eliminate any such provision the following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates;
and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Securities
Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not cause any REMIC to cease to qualify
as a
REMIC and will not cause any REMIC, as the case may be, to be subject to an
entity-level tax caused by the Transfer of any Residual Certificate to a Person
that is not a Permitted Transferee or a Person other than the prospective
transferee to be subject to a REMIC-tax caused by the Transfer of a Residual
Certificate to a Person that is not a Permitted Transferee.
(d) Subject
to the preceding subsections, upon surrender for registration of transfer of
any
Certificate at any office or agency of the Securities Administrator maintained
for such purpose pursuant to Section 9.11, the Securities Administrator
shall execute, authenticate and deliver, in the name of the designated
Transferee or Transferees, one or more new Certificates of the same Class of
a
like aggregate Percentage Interest.
(e) At
the
option of the Holder thereof, any Certificate may be exchanged for other
Certificates of the same Class with authorized denominations and a like
aggregate Percentage Interest, upon surrender of such Certificate to be
exchanged at any office or agency of the Securities Administrator maintained
for
such purpose pursuant to Section 9.11. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute,
authenticate and deliver, the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for transfer or exchange shall (if so required by the Securities Administrator)
be duly endorsed by, or be accompanied by a written instrument of transfer
in
the form satisfactory to the Securities Administrator duly executed by, the
Holder thereof or his attorney duly authorized in writing. In addition, with
respect to the Class R Certificate, the holder thereof may exchange, in the
manner described above, such Class R Certificate for two separate certificates,
each representing such holder's respective Percentage Interest in the Class
R-1
Interest and the Class R-2 Interest, respectively, in each case that was
evidenced by the Class R Certificate being exchanged.
(f) No
service charge to the Certificateholders shall be made for any transfer or
exchange of Certificates, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(g) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 6.02 shall not be an expense of the Trust Fund, the Securities
Administrator, the Depositor or the Sponsor.
(h) All
Certificates surrendered for transfer and exchange shall be canceled and
destroyed by the Securities Administrator in accordance with its customary
procedures.
Section
6.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a)
any mutilated Certificate is surrendered to the Securities Administrator, or
the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof
and
(b) there is delivered to the Securities Administrator such security or
indemnity as may be required by them to save each of them harmless, then, in
the
absence of notice to the Securities Administrator that such Certificate has
been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 6.03, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator) connected therewith. Any
replacement Certificate issued pursuant to this Section 6.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund,
as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. All Certificates surrendered to the Securities
Administrator under the terms of this Section 6.03 shall be canceled and
destroyed by the Securities Administrator in accordance with its standard
procedures without liability on its part.
Section
6.04 Persons
Deemed Owners.
The
Depositor, the Servicer, the Trustee, the Master Servicer, the Securities
Administrator and any of their agents may treat the person in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Depositor, the Servicer, the Trustee, the Master
Servicer, the Securities Administrator nor any of their agents shall be affected
by any notice to the contrary.
Section
6.05 Access
to List of Certificateholders’ Names and Addresses.
If
three
or more Certificateholders (a) request such information in writing from the
Securities Administrator, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Depositor shall request such information in writing from the Securities
Administrator, then the Securities Administrator shall, within ten Business
Days
after the receipt of such request, provide the Depositor or such
Certificateholders at such recipients’ expense the most recent list of the
Certificateholders of the Trust Fund held by the Securities Administrator,
if
any. The Depositor and every Certificateholder, by receiving and holding a
Certificate, agree that the Securities Administrator shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section
6.06 Book-Entry
Certificates.
The
Regular Certificates, upon original issuance, shall be issued in the form of
one
or more typewritten Certificates representing the Book- Entry Certificates,
to
be delivered to the Depository by or on behalf of the Depositor. Such
Certificates shall initially be registered on the Certificate Register in the
name of the Depository or its nominee, and no Certificate Owner of such
Certificates will receive a definitive certificate representing such Certificate
Owner’s interest in such Certificates, except as provided in Section 6.08.
Unless and until definitive, fully registered Certificates (“Definitive
Certificates”) have been issued to the Certificate Owners of such Certificates
pursuant to Section 6.08:
(a) the
provisions of this Section shall be in full force and effect;
(b) the
Depositor and the Securities Administrator may deal with the Depository and
the
Depository Participants for all purposes (including the making of distributions)
as the authorized representative of the respective Certificate Owners of such
Certificates;
(c) registration
of the Book-Entry Certificates may not be transferred by the Securities
Administrator except to another Depository;
(d) the
rights of the respective Certificate Owners of such Certificates shall be
exercised only through the Depository and the Depository Participants and shall
be limited to those established by law and agreements between the Owners of
such
Certificates and the Depository and/or the Depository Participants. Pursuant
to
the Depository Agreement, unless and until Definitive Certificates are issued
pursuant to Section 6.08, the Depository will make book-entry transfers
among the Depository Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Depository
Participants;
(e) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants;
(f) the
Depositor, the Servicer, the Trustee, the Master Servicer and the Securities
Administrator may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants;
and
(g) to
the
extent that the provisions of this Section conflict with any other
provisions of this Agreement, the provisions of this Section shall
control.
For
purposes of any provision of this Agreement requiring or permitting actions
with
the consent of, or at the direction of, Certificateholders evidencing a
specified percentage of the aggregate unpaid principal amount of any Class
of
Certificates, such direction or consent may be given by Certificate Owners
(acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
Section
6.07 Notices
to Depository.
Whenever
any notice or other communication is required to be given to Certificateholders
of a Class with respect to which Book-Entry Certificates have been issued,
unless and until Definitive Certificates shall have been issued to the related
Certificate Owners, the Securities Administrator shall give all such notices
and
communications to the Depository.
Section
6.08 Definitive
Certificates.
If,
after
Book-Entry Certificates have been issued with respect to any Certificates,
(a)
the Depositor or the Depository advises the Securities Administrator that the
Depository is no longer willing or able to discharge properly its
responsibilities under the Depository Agreement with respect to such
Certificates and the Securities Administrator or the Depositor is unable to
locate a qualified successor, (b) the Depositor, at its sole option, advises
the
Securities Administrator that it elects to terminate the book-entry system
with
respect to such Certificates through the Depository or (c) after the occurrence
and continuation of either of the events described in clauses (a) or (b) above,
Certificate Owners of such Book-Entry Certificates having not less than fifty
one percent (51%) of the Voting Rights evidenced by any Class of Book-Entry
Certificates advise the Securities Administrator and the Depository in writing
through the Depository Participants that the continuation of a book-entry system
with respect to Certificates of such Class through the Depository (or its
successor) is no longer in the best in