NEW CENTURY MORTGAGE SECURITIES, INC.
Depositor
COUNTRYWIDE HOME LOANS SERVICING LP
GMAC MORTGAGE CORPORATION
Servicers
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Guarantor (with respect to the Group I Class A Certificates)
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 2004
New Century Home Equity Loan Trust, Series 2004-A
Asset Backed Pass-Through Certificates
Series 2004-A
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms........................................................................-1-
SECTION 1.02. Allocation of Certain Interest Shortfalls...........................................-68-
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of the Mortgage Loans....................................................-72-
SECTION 2.02. Acceptance of REMIC I by Trustee....................................................-74-
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by the Seller..........................-76-
SECTION 2.04. Reserved............................................................................-78-
SECTION 2.05. Representations, Warranties and Covenants of the ...................................-78-
SECTION 2.06. Issuance of the REMIC I-A Regular Interests and the Class I
Certificates........................................................................-80-
SECTION 2.07. Conveyance of the REMIC I-A Regular Interests, REMIC I-B Regular
Interests and REMIC I-C Regular Interests; Acceptance of REMIC II
by the Trustee......................................................................-81-
SECTION 2.08. Conveyance of the REMIC II Regular Interests; Acceptance of
REMIC III by the Trustee.
SECTION 2.09. Issuance of Residual Certificates...................................................-82-
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as .................................................................-83-
SECTION 3.02. Sub-Servicing Agreements Between Servicer and Sub-Servicers
...................................................................................-85-
SECTION 3.03. Successor Sub-Servicers.............................................................-86-
SECTION 3.04. Liability of the Servicer...........................................................-87-
SECTION 3.05. No Contractual Relationship Between Sub-Servicers, the Trustee, the
Certificate Insurer, the Guarantor or the Certificateholders
...................................................................................-87-
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements by the
Trustee.............................................................................-87-
SECTION 3.07. Collection of Certain Mortgage Loan Payments........................................-88-
SECTION 3.08. Sub-Servicing Accounts..............................................................-89-
SECTION 3.09. Collection of Taxes, Assessments and Similar Items; Servicing
-i-
Accounts............................................................................-89-
SECTION 3.10. Collection Account and Distribution Account.........................................-90-
SECTION 3.11. Withdrawals from the Collection Account and Distribution Account....................-92-
SECTION 3.12. Investment of Funds in the Collection Account and the Distribution
Account.............................................................................-94-
SECTION 3.13. Agreement to Appoint a Special Servicer.............................................-95-
SECTION 3.14. Maintenance of Hazard Insurance and Errors and Omissions and
Fidelity Coverage...................................................................-97-
SECTION 3.15. Enforcement of Due-On-Sale Clauses; Assumption Agreements
...................................................................................-98-
SECTION 3.16. Realization Upon Defaulted Mortgage Loans...........................................-99-
SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files....................................-102-
SECTION 3.18. Servicing Compensation.............................................................-103-
SECTION 3.19. Reports to the Trustee and Others; Collection Account Statements
..................................................................................-104-
SECTION 3.20. Statement as to Compliance.........................................................-104-
SECTION 3.21. Independent Public Accountants' Servicing Report...................................-104-
SECTION 3.22. Access to Certain Documentation....................................................-105-
SECTION 3.23. Title, Management and Disposition of REO Property..................................-106-
SECTION 3.24. Obligations of the Servicer in Respect of Prepayment Interest Shortfalls...........-109-
SECTION 3.25. Obligations of the Servicer in Respect of Mortgage Rates and Monthly
Payments...........................................................................-109-
SECTION 3.26. Advance Facility...................................................................-109-
3.28 Net WAC Rate Carryover Reserve Account......................................................-110-
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions......................................................................-113-
SECTION 4.02. Statements to Certificateholders...................................................-139-
SECTION 4.03. Remittance Reports; P&I Advances...................................................-142-
SECTION 4.04. Allocation of Realized Losses......................................................-144-
SECTION 4.05. Compliance with Withholding Requirements...........................................-147-
SECTION 4.07. Derivative Contracts...............................................................-149-
SECTION 4.08. The Policy.........................................................................-149-
SECTION 4.09. The Guaranty.......................................................................-151-
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificate....................................................................-153-
SECTION 5.02. Registration of Transfer and Exchange of Certificates..............................-154-
-ii-
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates..................................-159-
SECTION 5.04. Persons Deemed Owners..............................................................-159-
SECTION 5.05. Certain Available Information......................................................-160-
ARTICLE VI
THE DEPOSITOR AND THE SERVICERS
SECTION 6.01. Liability of the Depositor and the Servicer........................................-161-
SECTION 6.02. Merger or Consolidation of the Depositor or the Servicer...........................-161-
SECTION 6.03. Limitation on Liability of the Depositor, the Servicers and Others
..................................................................................-161-
SECTION 6.04. Limitation on Resignation of the Servicers.........................................-162-
SECTION 6.05. Rights of the Depositor in Respect of the Servicers................................-163-
ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Events of Default.........................................................-165-
SECTION 7.02. Trustee to Act; Appointment of Successor...........................................-167-
SECTION 7.03. Notification to Certificateholders.................................................-168-
SECTION 7.04. Waiver of Servicer Events of Default...............................................-168-
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01. Duties of Trustee...........................................................................-169-
8.02. Certain Matters Affecting the Trustee.......................................................-170-
8.03. Trustee Not Liable for Certificates or Mortgage Loans.......................................-171-
8.04. Trustee May Own Certificates................................................................-171-
8.05. Trustee's Fees and Expenses.................................................................-172-
8.06. Eligibility Requirements for Trustee........................................................-172-
8.07. Resignation and Removal of the Trustee......................................................-173-
8.08. Successor Trustee...........................................................................-174-
8.09. Merger or Consolidation of Trustee..........................................................-174-
8.10. Appointment of Co-Trustee or Separate Trustee...............................................-174-
8.11. [Reserved]..................................................................................-175-
8.12. Appointment of Office or Agency.............................................................-175-
8.13. Representations and Warranties of the Trustee...............................................-176-
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans...................-177-
-iii-
SECTION 9.02 Additional Termination Requirements................................................-179-
ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration......................................................-181-
SECTION 10.02. Prohibited Transactions and Activities....................................-184-
SECTION 10.03. Servicer and Trustee Indemnification......................................-184-
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.................................................................-185-
SECTION 11.02. Recordation of Agreement; Counterparts....................................-186-
SECTION 11.03. Limitation on Rights of Certificateholders................................-187-
SECTION 11.04. Governing Law.............................................................-187-
SECTION 11.05. Notices...................................................................-187-
SECTION 11.06. Severability of Provisions................................................-188-
SECTION 11.07. Notice to Rating Agencies.................................................-188-
SECTION 11.08. Article and Section References............................................-189-
SECTION 11.09. Grant of Security Interest................................................-189-
SECTION 11.10. Waiver of Jury Trial......................................................-190-
SECTION 11.11. Rights of the Certificate Insurer.........................................-190-
-iv-
Exhibits
--------
Exhibit A-1 Form of Class A-I-1 Certificate
Exhibit A-2 Form of Class A-I-2 Certificate
Exhibit A-3 Form of Class A-I-3 Certificate
Exhibit A-4 Form of Class A-I-4 Certificate
Exhibit A-5 Form of Class A-I-5 Certificate
Exhibit A-6 Form of Class A-I-6 Certificate
Exhibit A-7 Form of Class A-I-7 Certificate
Exhibit A-8 Form of Class A-I-8 Certificate
Exhibit A-9 Form of Class A-I-9 Certificate
Exhibit A-10 Form of Class A-II-1 Certificate
Exhibit A-11 Form of Class A-II-2 Certificate
Exhibit A-12 Form of Class A-II-3 Certificate
Exhibit A-13 Form of Class A-II-4 Certificate
Exhibit A-14 Form of Class A-II-5 Certificate
Exhibit A-15 Form of Class A-II-6 Certificate
Exhibit A-16 Form of Class A-II-7 Certificate
Exhibit A-17 Form of Class A-II-8 Certificate
Exhibit A-18 Form of Class A-II-9 Certificate
Exhibit A-19 Form of Class A-III-A Certificate
Exhibit A-20 Form of Class A-III-B1 Certificate
Exhibit A-21 Form of Class A-III-B2 Certificate
Exhibit A-22 Form of Class M-I-1 Certificate
Exhibit A-23 Form of Class M-I-2 Certificate
Exhibit A-24 Form of Class M-II Certificate
Exhibit A-25 Form of Class M-III Certificate
Exhibit A-26 Form of Class B-I Certificate
Exhibit A-27 Form of Class B-II Certificate
Exhibit A-28 Form of Class B-III Certificate
Exhibit A-29 Form of Class CE-I Certificate
Exhibit A-30 Form of Class CE-II Certificate
Exhibit A-31 Form of Class CE-III Certificate
Exhibit A-32 Form of Class P-I Certificate
Exhibit A-33 From of Class P-II Certificate
Exhibit A-34 From of Class P-III Certificate
Exhibit A-35 Form of Class R-I Certificate
Exhibit A-36 Form of Class R-II Certificate
Exhibit A-37 From of Class R-III Certificate
Exhibit A-38 From of Class R-X Certificate
Exhibit B Copy of the Policy with respect to the Insured Certificates
Exhibit C-1 Form of Trustee's Initial Certification
Exhibit C-2 Form of Trustee's Final Certification
-v-
Exhibit D Form of Mortgage Loan Purchase Agreement
Exhibit E Request for Release
Exhibit F-1 Form of Transferor Representation Letter and Form of
Transferee Representation Letter in Connection with Transfer
of the Class B Certificates, Class CE Certificates, Class P
Certificates or Residual Certificates Pursuant to Rule 144A
Under the 1933 Act
Exhibit F-2 Form of Transfer Affidavit and Agreement and Form of
Transferor Affidavit in Connection with Transfer of Residual
Certificates
Exhibit G Form of Certification with respect to ERISA and the Code
Exhibit H Form of Report Pursuant to Section 4.06
Exhibit I Form of Lost Note Affidavit
Exhibit J-1 Form of Certification to Be Provided by the Depositor with
Form 10-K
Exhibit J-2 Form of Certification to Be Provided to the Depositor by the
Trustee
Exhibit J-3 Form of Certification to Be Provided to the Depositor by the
Servicers
Exhibit K [Reserved]
Exhibit L Form of Annual Statement as to Compliance
Schedule 1 Mortgage Loan Schedule
Schedule 2 Prepayment Charge Schedule
-vi-
This Pooling and Servicing Agreement, is dated and effective
as of July 1, 2004, among NEW CENTURY MORTGAGE SECURITIES, INC. as Depositor,
COUNTRYWIDE HOME LOANS SERVICING LP, GMAC MORTGAGE CORPORATION, as Servicers,
FEDERAL NATIONAL MORTGAGE ASSOCIATION, as Guarantor of the Class A-I-A
Certificates and DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates to be
issued hereunder in multiple classes, which in the aggregate will evidence the
entire beneficial ownership interest in each REMIC (as defined herein) created
hereunder. The Trust Fund will consist of a segregated pool of assets comprised
of the Mortgage Loans and certain other related assets subject to this
Agreement.
REMIC I-A
---------
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Group I Mortgage Loans and certain
other related assets (other than the Servicer Prepayment Charge Payment Amounts
with respect to the Group I Mortgage Loans, the Group I Net WAC Rate Carryover
Reserve Account and the Class A-I-1 Cap Contract) subject to this Agreement as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC I-A." The Class R-I Certificates will be the sole class
of "residual interests" in REMIC I-A for purposes of the REMIC Provisions (as
defined herein). The following table irrevocably sets forth the designation, the
REMIC I-A Remittance Rate, the initial Uncertificated Balance and, solely for
purposes of satisfying Treasury regulation section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC I-A Regular Interests (as
defined herein). None of the REMIC I-A Regular Interests will be certificated.
REMIC I-A Initial Latest Possible
Designation Remittance Rate Uncertificated Balance Maturity Date(1)
----------- --------------- ---------------------- ----------------
IA-LT1 Variable(2) $725,275,251.15 August 2034
IA-LT2 Variable(2) $ 2,272,852.13 August 0000
XX-XXX Variable(2) $ 100.00 August 2034
---------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately 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-A Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I-A Remittance Rate"
herein.
-vii-
REMIC I-B
---------
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the Group II Mortgage Loans and certain other related
assets (other than the Servicer Prepayment Charge Payment Amounts with respect
to the Group II Mortgage Loans, the Group II Net WAC Rate Carryover Reserve
Account and the Class A-II-1 Cap Contract) subject to this Agreement as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC I-B." The Class R-II Certificates will be the sole class of
"residual interests" in REMIC I-B for purposes of the REMIC Provisions (as
defined herein). The following table irrevocably sets forth the designation, the
REMIC I-B Remittance Rate, the initial Uncertificated Balance and, solely for
purposes of satisfying Treasury regulation section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC I-B Regular Interests (as
defined herein). None of the REMIC I-B Regular Interests will be certificated.
REMIC I-B Initial Latest Possible
Designation Remittance Rate Uncertificated Balance Maturity Date(1)
----------- --------------- ---------------------- ----------------
IB-LT1 Variable(2) $ 476,232,124.02 August 0000
XX-XXX Variable(2) $ 100.00 August 2034
---------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately 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-B Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I-B Remittance Rate"
herein.
-viii-
REMIC I-C
---------
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Group III Mortgage Loans and certain
other related assets (other than the Servicer Prepayment Charge Payment Amounts
with respect to the Group III Mortgage Loans, the Group III Net WAC Rate
Carryover Reserve Account, the Group III Cap Contract) subject to this Agreement
as a REMIC for federal income tax purposes, and such segregated pool of assets
will be designated as "REMIC I-C." The Class R-III Certificates will be the sole
class of "residual interests" in REMIC I-C for purposes of the REMIC Provisions
(as defined herein). The following table irrevocably sets forth the designation,
the REMIC I-C Remittance Rate, the initial Uncertificated Balance and, solely
for purposes of satisfying Treasury regulation section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC I-C Regular Interests (as
defined herein). None of the REMIC I-B Regular Interests will be certificated.
REMIC I-C Initial Latest Possible
Designation Remittance Rate Uncertificated Balance Maturity Date(1)
----------- --------------- ---------------------- ----------------
IC-LT1 Variable(2) $ 474,707,259.13 August 2034
IC-LT2 Variable(2) $ 909,100.00 August 2034
IC-LTP Variable(2) $ 100.00 August 2034
---------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately 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-C
Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I-C Remittance
Rate" herein.
-ix-
REMIC II
--------
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC I-A Regular Interests, the
REMIC I-B Regular Interests and the REMIC I-C Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." The Class R-II Interest will evidence the sole class
of "residual interests" in REMIC II for purposes of the REMIC Provisions under
federal income tax law. The following table irrevocably sets forth the
designation, the REMIC II Remittance Rate, the initial Uncertificated Balance
and, solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the REMIC
II Regular Interests (as defined herein). None of the REMIC II Regular Interests
will be certificated.
REMIC II Initial Latest Possible
Designation Remittance Rate Uncertificated Balance Maturity Date(1)
----------- --------------- ---------------------- ----------------
II-LTAA1 Variable(2) $ 712,997,043.21 August 2034
II-LTAI1 Variable(2) $ 1,619,660.00 August 2034
II-LTAI2 Variable(2) $ 502,740.00 August 2034
II-LTAI3 Variable(2) $ 976,790.00 August 2034
II-LTAI4 Variable(2) $ 380,480.00 August 2034
II-LTAI5 Variable(2) $ 547,470.00 August 2034
II-LTAI6 Variable(2) $ 503,720.00 August 2034
II-LTAI7 Variable(2) $ 369,010.00 August 2034
II-LTAI8 Variable(2) $ 731,350.00 August 2034
II-LTAI9 Variable(2) $ 625,690.00 August 2034
II-LTMI1 Variable(2) $ 654,790.00 August 2034
II-LTMI2 Variable(2) $ 72,750.00 August 2034
II-LTB1 Variable(2) $ 72,760.00 August 2034
II-LTZZ1 Variable(2) $ 7,493,750.07 August 2034
II-LTP1 Variable(2) $ 100.00 August 2034
II-LTAA2 Variable(2) $ 466,707,432.54 August 2034
II-LTAII1 Variable(2) $ 1,057,590.00 August 2034
II-LTAII2 Variable(2) $ 329,180.00 August 2034
II-LTAII3 Variable(2) $ 638,810.00 August 2034
II-LTAII4 Variable(2) $ 253,020.00 August 2034
II-LTAII5 Variable(2) $ 430,200.00 August 2034
II-LTAII6 Variable(2) $ 449,770.00 August 2034
II-LTAII7 Variable(2) $ 308,250.00 August 2034
II-LTAII8 Variable(2) $ 604,960.00 August 2034
II-LTAII9 Variable(2) $ 452,420.00 August 2034
II-LTM2 Variable(2) $ 47,630.00 August 2034
II-LTB2 Variable(2) $ 47,620.00 August 2034
II-LTZZ2 Variable(2) $ 4,905,191.48 August 2034
II-LTP2 Variable(2) $ 100.00 August 2034
II-LTAA3 Variable(2) $ 466,103933.95 August 2034
II-LTAIII1 Variable(2) $ 1,943,300.00 August 2034
II-LTAIII2 Variable(2) $ 1,734,270.00 August 2034
II-LTAIII3 Variable(2) $ 840,780.00 August 2034
II-LTM3 Variable(2) $ 95,120.00 August 2034
II-LTB3 Variable(2) $ 71,340.00 August 2034
II-LTZZ3 Variable(2) $ 4,827,515.18 August 2034
II-LTP3 Variable(2) $ 100.00 August 2034
-x-
---------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each REMIC II Regular Interest.
(2) Calculated in accordance with the definition of "REMIC II Remittance Rate"
herein.
-xi-
REMIC III
---------
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC III." The Class R-III Interest will evidence the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, the Pass-Through Rate, the initial aggregate Certificate Principal
Balance and, solely for purposes of satisfying Treasury regulation section
1.860G- 1(a)(4)(iii), the "latest possible maturity date" for the indicated
Classes of Certificates.
Initial Aggregate
Certificate Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
----------- ----------------- ------- ----------------
Class A-I-1 Variable(2) $161,966,000.00 August 2034
Class A-I-2 3.930% per annum(3) $ 50,274,000.00 August 2034
Class A-I-3 4.420% per annum(3) $ 97,679,000.00 August 2034
Class A-I-4 4.800% per annum(3) $ 38,048,000.00 August 2034
Class A-I-5 5.170% per annum(3) $ 54,747,000.00 August 2034
Class A-I-6 5.640% per annum(3) $ 50,372,000.00 August 2034
Class A-I-7 5.650% per annum(3) $ 36,901,000.00 August 2034
Class A-I-8 5.650% per annum(3) $ 73,135,000.00 August 2034
Class A-I-9 5.450% per annum(3) $ 62,569,000.00 August 2034
Class M-I-1 5.650% per annum(3) $ 65,479,000.00 August 2034
Class M-I-2 5.650% per annum(3) $ 7,275,000.00 August 2034
Class B-I 5.650% per annum(3) $ 7,276,000.00 August 2034
Class CE-I Variable(2) $ 21,827,003.28(4) August 2034
Class P-I N/A(5) $ 100.00 August 2034
Class A-II-1 Variable(2) $ 105,759,000.00 August 2034
Class A-II-2 3.930% per annum(3) $ 32,918,000.00 August 2034
Class A-II-3 4.450% per annum(3) $ 63,881,000.00 August 2034
Class A-II-4 4.860% per annum(3) $ 25,302,000.00 August 2034
Class A-II-5 5.250% per annum(3) $ 43,020,000.00 August 2034
Class A-II-6 5.650% per annum(3) $ 44,977,000.00 August 2034
Class A-II-7 5.650% per annum(3) $ 30,825,000.00 August 2034
Class A-II-8 5.650% per annum(3) $ 60,496,000.00 August 2034
Class A-II-9 5.470% per annum(3) $ 45,242,000.00 August 2034
Class M-II 5.650% per annum(3) $ 4,763,000.00 August 2034
Class B-II 5.650% per annum(3) $ 4,762,000.00 August 2034
Class CE-II Variable(2) $ 14,287,074.02(4) August 2034
Class P-II N/A(5) $ 100.00 August 2034
Class A-III-A Variable(2) $ 194,330,000.00 August 2034
Class A-III-B1 Variable(2) $173,427,000.00 August 2034
Class A-III-B2 Variable(2) $ 84,078,000.00 August 2034
Class M-III Variable(2) $ 9,512,000.00 August 2034
Class B-III Variable(2) $ 7,134,000.00 August 2034
Class CE-III Variable(2) $ 7,135,259.13(4) August 2034
Class P-III N/A(5) $ 100.00 August 2034
---------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loans with the latest maturity date has been designated as
the "latest possible maturity date" for each Class of Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
-xii-
(3) Subject to the related Net WAC Pass-Through Rate.
(4) The Class CE-I Certificates, the Class CE-II Certificates and the Class
CE-III Certificates will each accrue interest at their variable
Pass-Through Rates on the related Notional Amount for such Class
outstanding from time to time. The Class CE-I Certificates, the Class CE-II
Certificates and the Class CE-III Certificates will not accrue interest on
their respective Certificate Principal Balances.
(5) The Class P-I Certificates, the Class P-II Certificates and the Class P-III
Certificates will not accrue interest.
As of the Cut-off Date, the Group I Mortgage Loans had an
aggregate Stated Principal Balance equal to $725,275,251.15, the Group II
Mortgage Loans had an aggregate Stated Principal Balance equal to
$476,232,174.02, the Group III-A Mortgage Loans had an aggregate Stated
Principal Balance equal to $201,883,650.92 and the Group III-B Mortgage Loans
had an aggregate Stated Principal Balance equal to $272,823,608.21.
In consideration of the mutual agreements herein contained,
the Depositor, the Servicers, the Guarantor and the Trustee agree as follows:
-xiii-
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including, without
limitation, in the Preliminary Statement hereto, the following words and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations
described herein shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
"Accepted Servicing Practices": The servicing standards set
forth in Section 3.01.
"Accrued Certificate Interest": With respect to any Class A
Certificate, Mezzanine Certificate or Class CE Certificate and each Distribution
Date, interest accrued during the related Interest Accrual Period at the
Pass-Through Rate for such Certificate for such Distribution Date on the
Certificate Principal Balance, in the case of the Class A Certificates and the
Mezzanine Certificates, or on the Notional Amount, in the case of the Class CE
Certificates, of such Certificate immediately prior to such Distribution Date.
The Class P Certificates are not entitled to distributions in respect of
interest and, accordingly, will not accrue interest. All distributions of
interest on the Floating Rate Certificates will be calculated on the basis of a
360-day year and the actual number of days in the applicable Interest Accrual
Period. All distributions of interest on the Fixed Rate Certificates and the
Class CE Certificates will be based on a 360- day year consisting of twelve
30-day months. Accrued Certificate Interest with respect to each Distribution
Date, as to any Class A Certificate, Mezzanine Certificate or Class CE
Certificate, shall be reduced by an amount equal to the portion allocable to
such Certificate pursuant to Section 1.02 hereof of the sum of (a) the aggregate
Prepayment Interest Shortfall, if any, for such Distribution Date to the extent
not covered by payments pursuant to Section 3.24 and (b) the aggregate amount of
any Relief Act Interest Shortfall, if any, for such Distribution Date. In
addition, Accrued Certificate Interest with respect to each Distribution Date,
as to any Class CE Certificate, shall be reduced by an amount equal to the
portion allocable to such Class CE Certificate of Realized Losses, if any,
pursuant to Section 4.04 hereof.
"Adjustment Date": With respect to each Group III Mortgage
Loan, the first day of the month in which the Mortgage Rate of such Mortgage
Loan changes pursuant to the related Mortgage Note. The first Adjustment Date
following the Cut-off Date as to each Group III Mortgage Loan is set forth in
the Mortgage Loan Schedule.
"Advancing Person": As defined in Section 3.26(a) hereof.
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Allocated Realized Loss Amount": With respect to any
Distribution Date and any Class of Mezzanine Certificates, the sum of (i) any
Realized Losses allocated to such Class of Certificates on such Distribution
Date and (ii) the amount of any Allocated Realized Loss Amount for such Class of
Certificates remaining unpaid from the previous Distribution Date and reduced by
the amount of any Subsequent Recoveries on the related Mortgage Loans added to
the Certificate Principal Balance of such Class of Certificates.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form (excepting therefrom, if applicable,
the mortgage recordation information which has not been required pursuant to
Section 2.01 hereof or returned by the applicable recorder's office), which is
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by law.
"Available Distribution Amount": The Group I Available
Distribution Amount, the Group II Available Distribution Amount or the Group III
Available Distribution Amount, as applicable.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11
of the United States Code), as amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a
Realized Loss resulting from a Deficient Valuation or Debt Service Reduction.
"Book-Entry Certificate": The Class A Certificates and the
Mezzanine Certificates for so long as the Certificates of such Class shall be
registered in the name of the Depository or its nominee.
"Book-Entry Custodian": The custodian appointed pursuant to
Section 5.01.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which the Guarantor or banking or savings and loan institutions in the
State of California, the State of New York, the State of Texas or in the city in
which the Corporate Trust Office of the Trustee is located, are authorized or
obligated by law or executive order to be closed.
"Cap Contracts": Collectively, the Class A-I-1 Cap Contract,
the Class A-II-1 Cap Contract and the Group III Cap Contract.
"Cash-Out Refinancing": A Refinanced Mortgage Loan the
proceeds of which are more than a nominal amount in excess of the principal
balance of any existing first mortgage or subordinate mortgage on the related
Mortgaged Property and related closing costs.
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"Certificate": Any one of the Asset Backed Pass-Through
Certificates, Series 2004-A, Class A-I-1, Class A-I-2, Class A-I-3, Class A-I-4,
Class A-I-5, Class A-I-6, Class A-I-7, Class A-I-8, Class A-I-9, Class A-II-1,
Class A-II-2, Class A-II-3, Class A-II-4, Class A-II-5, Class A-II-6, Class
A-II-7, Class A-II-8, Class A-II-9, Class A-III-A, Class A-III-B1, Class
A-III-B2, Class M-I-1, Class M-I-2, Class M-II, Class M-III, Class B-I, Class
B-II, Class B-III, Class CE-I, Class CE-II, Class CE- III, Class P-I, Class
P-II, Class P-III, Class R-I, Class R-II, Class R-III and Class R-X issued under
this Agreement.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or a Non-United States Person shall not be a Holder of
a Residual Certificate for any purposes hereof and, solely for the purposes of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or either Servicer or any Affiliate thereof shall be
deemed not to be outstanding and the Voting Rights to which it is entitled shall
not be taken into account in determining whether the requisite percentage of
Voting Rights necessary to effect any such consent has been obtained, except as
otherwise provided in Section 11.01. The Trustee may conclusively rely upon a
certificate of the Depositor or either Servicer in determining whether a
Certificate is held by an Affiliate thereof. All references herein to "Holders"
or "Certificateholders" shall reflect the rights of Certificate Owners as they
may indirectly exercise such rights through the Depository and participating
members thereof, except as otherwise specified herein; provided, however, that
the Trustee, the Certificate Insurer and the Guarantor shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificate Factor": With respect to any Class of Regular
Certificates as of any Distribution Date, a fraction, expressed as a decimal
carried to six places, the numerator of which is the aggregate Certificate
Principal Balance (or the Notional Amount, in the case of the Class CE
Certificates) of such Class of Certificates on such Distribution Date (after
giving effect to any distributions of principal and allocations of Realized
Losses in reduction of the Certificate Principal Balance (or the Notional
Amount, in the case of the Class CE Certificates) of such Class of Certificates
to be made on such Distribution Date), and the denominator of which is the
initial aggregate Certificate Principal Balance (or the Notional Amount, in the
case of the Class CE Certificates) of such Class of Certificates as of the
Closing Date.
"Certificate Insurer": Financial Guaranty Insurance Company, a
New York stock insurance corporation, organized and created under the laws of
the State of New York and its successors in interest.
"Certificate Insurer Account": An account of the Certificate
Insurer maintained at JPMorgan Chase Bank (ABA No. 000000000), Account No.
904951812, Attention: New Century, Series 2004-A, or such other account as may
be designated by the Certificate Insurer to the Trustee in writing not less than
five Business Days prior to the related Distribution Date. Any wire transfers to
the Certificate Insurer Account shall reference the Policy No. of the Policy.
"Certificate Insurer Default": The existence and continuance
of any of the following: (a) a failure by the Certificate Insurer to make a
payment required under the Policy in accordance with its
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terms; or (b)(i) the Certificate Insurer (A) files any petition or commences any
case or proceeding under any provision or chapter of the Bankruptcy Code, the
New York Insurance Law or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (B) makes
a general assignment for the benefit of its creditors, or (C) has an order for
relief entered against it under the Bankruptcy Code, the New York Insurance Law
or any other similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization which is final and nonappealable;
or (ii) a court of competent jurisdiction, the New York Department of Insurance
or other competent regulatory authority enters a final and nonappealable order,
judgment or decree (A) appointing a custodian, trustee, agent or receiver for
the Certificate Insurer or for all or any material portion of its property or
(B) authorizing the taking of possession by a custodian, trustee, agent or
receiver of the Certificate Insurer (or the taking of possession of all or any
material portion of the property of the Certificate Insurer).
"Certificate Margin": With respect to the Class A-I-1
Certificates, 0.08% in the case of each Distribution Date.
With respect to the Class A-II-1 Certificates, 0.180% in the
case of each Distribution Date.
With respect to the Class A-III-A Certificates, 0.280% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans (and
properties acquired in respect thereof) remaining in the Trust Fund is reduced
to less than 10% of the sum of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date and the Initial Deposit and 0.560% in the
case of each Distribution Date thereafter.
With respect to the Class A-III-B1 Certificates, 0.210% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans (and
properties acquired in respect thereof) remaining in the Trust Fund is reduced
to less than 10% of the sum of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date and the Initial Deposit and 0.420% in the
case of each Distribution Date thereafter.
With respect to the Class A-III-B2 Certificates, 0.450% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans (and
properties acquired in respect thereof) remaining in the Trust Fund is reduced
to less than 10% of the sum of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date and the Initial Deposit and 0.900% in the
case of each Distribution Date thereafter.
With respect to the Class M-III Certificates, 4.000% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate Stated Principal Balance of the Mortgage Loans (and
properties acquired in respect thereof) remaining in the Trust Fund is reduced
to less than 10% of the sum of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date and the Initial Deposit and 6.000% in the
case of each Distribution Date thereafter.
With respect to the Class B-III Certificates, 4.000% in the
case of each Distribution Date
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through and including the Distribution Date on which the aggregate Stated
Principal Balance of the Mortgage Loans (and properties acquired in respect
thereof) remaining in the Trust Fund is reduced to less than 10% of the sum of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date and the Initial Deposit and 6.000% in the case of each Distribution Date
thereafter.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to each Class A
Certificate, Mezzanine Certificate or Class P Certificate as of any date of
determination, the Certificate Principal Balance of such Certificate on the
Distribution Date immediately prior to such date of determination plus any
Subsequent Recoveries on the related Mortgage Loans added to the Certificate
Principal Balance of such Certificate pursuant to Section 4.01, minus all
distributions allocable to principal made thereon and in the case of a Mezzanine
Certificate, Realized Losses allocated thereto on such immediately prior
Distribution Date (or, in the case of any date of determination up to and
including the first Distribution Date, the initial Certificate Principal Balance
of such Certificate, as stated on the face thereof).
With respect to the Class CE-I Certificates as of any date of
determination, an amount equal to the Percentage Interest evidenced by such
Certificate times the excess, if any, of (A) the then aggregate Uncertificated
Balance of REMIC II Regular Interest II-LTAI1, REMIC II Regular Interest II-
LTAI2, REMIC II Regular Interest II-LTAI3, REMIC II Regular Interest II-LTAI4,
REMIC II Regular Interest II-LTAI5, REMIC II Regular Interest II-LTAI6, REMIC II
Regular Interest II-LTAI7, REMIC II Regular Interest II-LTAI8, REMIC II Regular
Interest II-LTAI9, REMIC II Regular Interest II-LTMI1, REMIC II Regular Interest
II-LTMI2, REMIC II Regular Interest II-LTB1, REMIC II Regular Interest II-LTZZ1
and REMIC II Regular Interest II-LTP1 over (B) the then aggregate Certificate
Principal Balance of the Group I Class A Certificates, the Group I Mezzanine
Certificates and the Class P-I Certificates then outstanding.
With respect to the Class CE-II Certificates as of any date of
determination, an amount equal to the Percentage Interest evidenced by such
Certificate times the excess, if any, of (A) the then aggregate Uncertificated
Balance of REMIC II Regular Interest II-LTAII1, REMIC II Regular Interest II-
LTAII2, REMIC II Regular Interest II-LTAII3, REMIC II Regular Interest
II-LTAII4, REMIC II Regular Interest II-LTAII5, REMIC II Regular Interest
II-LTAII6, REMIC II Regular Interest II-LTAII7, REMIC II Regular Interest
II-LTAII8, REMIC II Regular Interest II-LTAII9, REMIC II Regular Interest II-
LTM2, REMIC II Regular Interest II-LTB2, REMIC II Regular Interest II-LTZZ2 and
REMIC II Regular Interest II-LTP2 over (B) the then aggregate Certificate
Principal Balance of the Group II Class A Certificates, the Group II Mezzanine
Certificates and the Class P-II Certificates then outstanding.
With respect to the Class CE-III Certificates as of any date
of determination, an amount equal to the Percentage Interest evidenced by such
Certificate times the excess, if any, of (A) the then aggregate Uncertificated
Balance of REMIC II Regular Interest II-LTAIII1, REMIC II Regular Interest
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II-LTAIII2, REMIC II Regular Interest II-LTAIII3, REMIC II Regular Interest
II-LTM3, REMIC II Regular Interest II-LTB3, REMIC II Regular Interest II-LTZZ3
and REMIC II Regular Interest II-LTP3 over (B) the then aggregate Certificate
Principal Balance of the Group III Class A Certificates, the Group III Mezzanine
Certificates and the Class P-III Certificates then outstanding.
"Certificate Register": The register maintained pursuant to
Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same class designation.
"Class A-I-1 Cap Contract": The cap contract between the
Trustee and the counterparty thereunder for the benefit of the Holders of the
Class A-I-1 Certificates.
"Class A-I-1 Certificate": Any one of the Class A-I-1
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-1 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-I-2 Certificate": Any one of the Class A-I-2
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-2 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-I-3 Certificate": Any one of the Class A-I-3
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-3 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-I-4 Certificate": Any one of the Class A-I-4
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-4 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-I-5 Certificate": Any one of the Class A-I-5
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-5 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-I-6 Certificate": Any one of the Class A-I-6
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-6 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-I-7 Certificate": Any one of the Class A-I-7
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-7 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-I-8 Certificate": Any one of the Class A-I-8
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-8 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
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"Class A-I-9 Certificate": Any one of the Class A-I-9
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-9 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-II-1 Cap Contract": The cap contract between the
Trustee and the counterparty thereunder for the benefit of the Holders of the
Class A-II-1 Certificates.
"Class A-II-1 Certificate": Any one of the Class A-II-1
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-10 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-II-2 Certificate": Any one of the Class A-II-2
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-11 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-II-3 Certificate": Any one of the Class A-II-3
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-12 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-II-4 Certificate": Any one of the Class A-II-4
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-13 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-II-5 Certificate": Any one of the Class A-II-5
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-14 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-II-6 Certificate": Any one of the Class A-II-6
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-15 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-II-7 Certificate": Any one of the Class A-II-7
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-16 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-II-8 Certificate": Any one of the Class A-II-8
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-17 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-II-9 Certificate": Any one of the Class A-II-9
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-18 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
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"Class A-III-A Certificate": Any one of the Class A-III-A
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-19 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-III-B1 Certificate": Any one of the Class A-III-B1
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-20 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class A-III-B2 Certificate": Any one of the Class A-III-B2
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-21 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class B Certificate": Any one of the Class B-I Certificates,
the Class B-II Certificates or the Class B-III Certificates.
"Class B-I Certificate": Any one of the Class B-I Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-26 and evidencing a Regular Interest in REMIC III
for purposes of the REMIC Provisions.
"Class B-I Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Group I Class A Certificates (after taking into account
the distribution of the Group I Class A Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of the
Class M-I-1 Certificates (after taking into account the distribution of the
Class M-I-1 Principal Distribution Amount on such Distribution Date), (iii) the
aggregate Certificate Principal Balance of the Class M-I-2 Certificates (after
taking into account the distribution of the Class M-I-2 Principal Distribution
Amount on such Distribution Date), and (iv) the Certificate Principal Balance of
the Class B-I Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) approximately 94.00% and (ii) the aggregate
Stated Principal Balance of the Group I Mortgage Loans as of the last day of the
related Due Period and (B) the aggregate Stated Principal Balance of the Group I
Mortgage Loans as of the last day of the related Due Period minus $3,637,741.
"Class B-II Certificate": Any one of the Class B-II
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-27 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class B-II Principal Distribution Amount": With respect to
any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Group II Class A Certificates (after taking
into account the distribution of the Group II Class A Principal Distribution
Amount on such Distribution Date), (ii) the Certificate Principal Balance of the
Class M-II Certificates (after taking into account the distribution of the Class
M-II Principal Distribution Amount on such Distribution Date) and (iii) the
Certificate Principal Balance of the Class B-II Certificates immediately prior
to such Distribution Date over (y) the lesser of (A) the product of (i)
approximately 94.00% and (ii) the aggregate Stated Principal
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Balance of the Group II Mortgage Loans as of the last day of the related Due
Period and (B) the aggregate Stated Principal Balance of the Group II Mortgage
Loans as of the last day of the related Due Period minus $2,381,161.
"Class B-III Principal Distribution Amount": With respect to
any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Group III Class A Certificates (after
taking into account the distribution of the Group III Class A Principal
Distribution Amount on such Distribution Date), (ii) the Certificate Principal
Balance of the Class M-III Certificates (after taking into account the
distribution of the Class M-III Principal Distribution Amount on such
Distribution Date) and (iii) the Certificate Principal Balance of the Class
B-III Certificates immediately prior to such Distribution Date over (y) the
lesser of (A) the product of (i) approximately 97.00% and (ii) the aggregate
Stated Principal Balance of the Group III Mortgage Loans as of the last day of
the related Due Period and (B) the aggregate Stated Principal Balance of the
Group III Mortgage Loans as of the last day of the related Due Period minus
$2,378,082.
"Class CE Certificate": Any one of the Class CE-I
Certificates, the Class CE-II Certificates or the Class CE-III Certificates.
"Class CE-I Certificate": Any one of the Class CE-I
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-29 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class CE-II Certificate": Any one of the Class CE-II
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-30 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class CE-III Certificate": Any one of the Class CE-III
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-31 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate": Any one of the Class M-I-1
Certificates, the Class M-I-2 Certificates, the Class M-II Certificates or the
Class M-III Certificates.
"Class M-I-1 Certificate": Any one of the Class M-I-1
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-22 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class M-I-1 Principal Distribution Amount": With respect to
any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Group I Class A Certificates (after taking
into account the distribution of the Group I Class A Principal Distribution
Amount on such Distribution Date) and (ii) the Certificate Principal Balance of
the Class M-I-1 Certificates immediately prior to such Distribution Date over
(y) the lesser of (A) the product of (i) approximately 90.00% and (ii) the
aggregate Stated Principal Balance of the Group I Mortgage Loans as of the last
day of the related Due
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Period and (B) the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period minus $3,637,741.
"Class M-I-2 Certificate": Any one of the Class M-I-2
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-23 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class M-I-2 Principal Distribution Amount": With respect to
any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Group I Class A Certificates (after taking
into account the distribution of the Group I Class A Principal Distribution
Amount on such Distribution Date), (ii) the Certificate Principal Balance of the
Class M-I-1 Certificates (after taking into account the distribution of the
Class M-I-1 Principal Distribution Amount on such Distribution Date) and (ii)
the Certificate Principal Balance of the Class M-I-2 Certificates immediately
prior to such Distribution Date over (y) the lesser of (A) the product of (i)
approximately 92.00% and (ii) the aggregate Stated Principal Balance of the
Group I Mortgage Loans as of the last day of the related Due Period and (B) the
aggregate Stated Principal Balance of the Group I Mortgage Loans as of the last
day of the related Due Period minus $3,637,741.
"Class M-II Certificate": Any one of the Class M-II
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-24 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class M-II Principal Distribution Amount": With respect to
any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Group II Class A Certificates (after taking
into account the distribution of the Group II Class A Principal Distribution
Amount on such Distribution Date) and (ii) the Certificate Principal Balance of
the Class M-II Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) approximately 92.00% and (ii) the aggregate
Stated Principal Balance of the Group II Mortgage Loans as of the last day of
the related Due Period and (B) the aggregate Stated Principal Balance of the
Group II Mortgage Loans as of the last day of the related Due Period minus
$2,381,161.
"Class M-III Certificate": Any one of the Class M-III
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-25 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class M-III Principal Distribution Amount": With respect to
any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Group III Class A Certificates (after
taking into account the distribution of the Group III Class A Principal
Distribution Amount on such Distribution Date) and (ii) the Certificate
Principal Balance of the Class M-III Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) approximately
94.00% and (ii) the aggregate Stated Principal Balance of the Group III Mortgage
Loans as of the last day of the related Due Period and (B) the aggregate Stated
Principal Balance of the Group III Mortgage Loans as of the last day of the
related Due Period minus $2,378,082.
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"Class P Certificate": Any one of the Class P-I Certificates,
the Class P-II Certificates or the Class P-III Certificates.
"Class P-I Certificate": Any one of the Class P-I Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-32 and evidencing a Regular Interest in REMIC III
for purposes of the REMIC Provisions.
"Class P-II Certificate": Any one of the Class P-II
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-33 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class P-III Certificate": Any one of the Class P-II
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-34 and evidencing a Regular Interest in
REMIC III for purposes of the REMIC Provisions.
"Class R-I Certificate": Any one of the Class R-I Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-35.
"Class R-II Certificate": Any one of the Class R-II
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto.
"Class R-III Certificate": Any one of the Class R-II
Certificates executed, authenticated and delivered by the Trustee, substantially
in the form annexed hereto as Exhibit A-37.
"Class R-X Certificate": Any one of the Class R-X Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-38 and evidencing the ownership of the Class R-II
Interest and the Class R-III Interest.
"Class R-II Interest": The uncertificated Residual Interest in
REMIC II.
"Class R-III Interest": The uncertificated Residual Interest
in REMIC III.
"Closing Date": August 4, 2004.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The account or accounts created and
maintained, or caused to be created and maintained, by each Servicer pursuant to
Section 3.10(a), which shall be entitled as appropriate (i) "Countrywide Home
Loans Servicing, LP, as a Servicer for Deutsche Bank National Trust Company, as
Trustee, in trust for the registered holders of New Century Home Equity Loan
Trust, Series 2004-A, Asset Backed Pass-Through Certificates" or (ii) "GMAC
Mortgage Corporation, as a Servicer for Deutsche Bank National Trust Company, as
Trustee, in trust for the registered holders of New Century
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Home Equity Loan Trust, Series 2004-A, Asset Backed Pass-Through Certificates."
Each Collection Account must be an Eligible Account.
"Commission": The Securities and Exchange Commission.
"Controlling Person": As of any date of determination: (i) the
Certificate Insurer, so long as (A) the Insured Certificates or any amounts are
owed to the Certificate Insurer under this Agreement or the Insurance Agreement,
(B) no Certificate Insurer Default has occurred and is continuing; provided,
however, that the Certificate Insurer shall not be the Controlling Person with
respect to the Group I Class A Certificates on or after the Distribution Date on
which the Certificate Principal Balance of the Class M-I- 1 Certificates is less
than $5,000,000, (ii) the Guarantor, so long as (A) the Guaranteed Certificates
are outstanding or any amounts are owed to the Guarantor under this Agreement,
(B) no event of default has occurred and is continuing under the Guaranty and
(C) the Certificate Insurer is not the Certificates Controlling Person under
clause (i) above; and (iii) none, so long as neither the Certificate Insurer nor
the Guarantor is the Controlling Person pursuant to clause (i) or (ii) above.
"Corporate Trust Office": The principal corporate trust office
of the Trustee at which at any particular time its corporate trust business in
connection with this Agreement shall be administered, which office at the date
of the execution of this instrument is located at 0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attn: NC040A, or at such other address as the
Trustee may designate from time to time by notice to the Certificateholders, the
Depositor, the Servicers, the Guarantor and the Certificate Insurer.
"Corresponding Certificate": With respect to each REMIC II
Regular Interest set forth below, the Regular Certificate set forth in the table
below:
REMIC II REGULAR INTEREST Certificate
------------------------- -----------
II-LTAI1 Class A-I-1
II-LTAI2 Class A-I-2
II-LTAI3 Class A-I-3
II-LTAI4 Class A-I-4
II-LTAI5 Class A-I-5
II-LTAI6 Class A-I-6
II-LTAI7 Class A-I-7
II-LTAI8 Class A-I-8
II-LTAI9 Class A-I-9
II-LTMI1 Class M-I-1
II-LTMI2 Class M-I-2
II-LTB1 Class B-I
II-LTP1 Class P-I
II-LTAII1 Class A-I-1
II-LTAII2 Class A-I-2
II-LTAII3 Class A-I-3
II-LTAII4 Class A-I-4
II-LTAII5 Class A-I-5
II-LTAII6 Class A-I-6
II-LTAII7 Class X-X-0
-00-
XX-XXXXX0 Class A-I-8
II-LTAII9 Class A-I-9
II-LTM2 Class M-II
II-LTB2 Class B-II
II-LTP2 Class P-II
II-LTAIII1 Class A-III-A
II-LTAIII2 Class A-III-A
II-LTAIII3 Class A-III-A
II-LTM3 Class M-III
II-LTB3 Class B-III
II-LTP3 Class P-III
"Countrywide": Countrywide Home Loans Servicing, LP, or any
successor Servicer of the Group III Mortgage Loans appointed as herein provided,
in its capacity as a Servicer hereunder.
"Cumulative Loss Percentage": With respect to any Distribution
Date, either (1) with respect to the Group I Mortgage Loans, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred on the Group I Mortgage Loans from the Cut-off Date to
the last day of the preceding calendar month and the denominator of which is the
aggregate Stated Principal Balance of the Group I Mortgage Loans as of the
Cut-off Date and the Group I Initial Deposit and (ii) with respect to the Group
II Mortgage Loans, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount of Realized Losses incurred on the Group II
Mortgage Loans from the Cut-off Date to the last day of the preceding calendar
month and the denominator of which is the aggregate Stated Principal Balance of
the Group II Mortgage Loans as of the Cut-off Date.
"Cut-off Date": With respect to each Original Mortgage Loan,
July 1, 2004. With respect to all Qualified Substitute Mortgage Loans, their
respective dates of substitution. References herein to the "Cut-off Date," when
used with respect to more than one Mortgage Loan, shall be to the respective
Cut-off Dates for such Mortgage Loans.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction resulting from a Deficient Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of competent jurisdiction
in an amount less than the then outstanding principal balance of the Mortgage
Loan, which valuation results from a proceeding initiated under the Bankruptcy
Code.
"Definitive Certificates": As defined in Section 5.01(b).
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be
replaced by a Qualified Substitute Mortgage Loan.
"Delinquency Trigger": With respect to any Distribution Date,
a Delinquency Trigger exists
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if either (a) the quotient (expressed as a percentage) of (1) the rolling
three-month average of the aggregate unpaid principal balance of Group I
Mortgage Loans delinquent 60 or more days as of the last day of the related Due
Period, divided by (2) the aggregate unpaid principal balance of the Group I
Mortgage Loans as of the last day of the related Due Period, equals or exceeds
10.00%; or (b) the quotient (expressed as a percentage) of (1) the rolling
three-month average of the aggregate unpaid principal balance of Group II
Mortgage Loans delinquent 60 or more days as of the last day of the related Due
Period, divided by (2) the aggregate unpaid principal balance of the Group II
Mortgage Loans as of the last day of the related Due Period, equals or exceeds
10.00%.
"Depositor": New Century Mortgage Securities, Inc., a Delaware
corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository, for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended.
"Depository Institution": Any depository institution or trust
company, including the Trustee that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations (or,
in the case of a depository institution that is the principal subsidiary of a
holding company, such holding company has unsecured commercial paper or other
short-term unsecured debt obligations) that are rated at least P-1 by Xxxxx'x
and A-1+ by S&P.
"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 each Distribution Date,
the 15th day of the calendar month in which such Distribution Date occurs or, if
such 15th day is not a Business Day, the Business Day immediately preceding such
15th day.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work thereon or any use
of such REO Property in a trade or business conducted by REMIC I-A, REMIC I-B or
REMIC I-C other than through an Independent Contractor; provided, however, that
the Trustee (or either Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
either Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs or capital expenditures
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with respect to such REO Property.
"Disqualified Organization": Any of the following: (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 (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for Xxxxxxx Mac, a majority of its board of directors
is not selected by such governmental unit), (ii) any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an "electing
large partnership" and (vi) any other Person as set forth in an Opinion of
Counsel delivered to the Trustee and the Depositor to the effect that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause any of Trust REMIC or any Person having an Ownership Interest in any Class
of Certificates (other than such Person) to incur a liability for any federal
tax imposed under the Code that would not otherwise be imposed but for the
Transfer of an Ownership Interest in a Residual Certificate to such Person. The
terms "United States," "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distribution Account": The trust account or accounts created
and maintained by the Trustee pursuant to Section 3.10(b), which shall be
entitled "Deutsche Bank National Trust Company, as Trustee, in trust for the
registered holders of New Century Home Equity Loan Trust, Series 2004-A, Asset
Backed Pass-Through Certificates." The Distribution Account must be an Eligible
Account.
"Distribution Date": The 25th day of any month, or if such
25th day is not a Business Day, the Business Day immediately following such 25th
day, commencing in August 2004.
"Due Date": With respect to each Distribution Date, the first
day of the calendar month in which such Distribution Date occurs, which is
generally the day of the month on which the Monthly Payment is due on a Mortgage
Loan, exclusive of any days of grace.
"Due Period": With respect to any Distribution Date, the
period commencing on the second day of the month immediately preceding the month
in which such Distribution Date occurs and ending on the related Due Date.
"Effective Date": As defined in Section 3.13 hereof.
"Eligible Account": Any of (i) an account or accounts
maintained with a Depository Institution or (ii) 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 acting
in its fiduciary capacity. Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
-15-
"Estate in Real Property": A fee simple estate in a parcel of
land.
"Expense Adjusted Maximum Mortgage Rate": With respect to any
Group III Mortgage Loan (or the related REO Property), as of any date of
determination, a per annum rate of interest equal to the applicable Maximum
Mortgage Rate thereon as of the close of business on the first day of the
calendar month preceding the month in which the Distribution Date occurs minus
the sum of (i) the Trustee Fee Rate and (ii) the Servicing Fee Rate.
"Expense Adjusted Mortgage Rate": With respect to any Mortgage
Loan (or the related REO Property), as of any date of determination, a per annum
rate of interest equal to the applicable Mortgage Rate thereon as of the close
of business on the first day of the calendar month preceding the month in which
the Distribution Date occurs minus the sum of (i) the Trustee Fee Rate and (ii)
the Servicing Fee Rate.
"Extraordinary Trust Fund Expense": Any amounts reimbursable
to the Trustee or any director, officer, employee or agent of the Trustee from
the Trust Fund pursuant to Section 8.05 or Section 10.01(c), any amounts payable
from the Distribution Account in respect of taxes pursuant to Section
10.01(g)(iii) and any costs incurred by the Trustee endorsing any Mortgage Notes
delivered in blank under Section 2.01 or recording the Assignments pursuant to
Section 2.01 (to the extent the Seller is unable to pay such costs).
"Xxxxxx Xxx": Xxxxxx Xxx, formally known as the Federal
National Mortgage Association, or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Stated Maturity Date": The Distribution Date in August
2034.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Seller, the Depositor or either Servicer pursuant to or as
contemplated by Section 2.03, Section 3.16(c) or Section 9.01), a determination
made by the related Servicer that all Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries which such Servicer, in its reasonable good
faith judgment, expects to be finally recoverable in respect thereof have been
so recovered. Each Servicer shall maintain records, prepared by a Servicing
Officer, of each Final Recovery Determination made thereby.
"Fixed Rate Certificates": The Group I Class A Certificates
(other than the Class A-I-1 Certificates), the Group II Class A Certificates
(other than the Class A-II-1 Certificates), the Group I Mezzanine Certificates
and the Group II Mezzanine Certificates.
"Floating Rate Certificates": The Class A-I-1 Certificates,
the Class A-II-1 Certificates, the Group III Class A Certificates and the Group
III Mezzanine Certificates.
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"Formula Rate": For any Distribution Date and the Class A-I-1
Certificates and the Class A-II-1 Certificates, One-Month LIBOR plus the related
Certificate Margin. For any Distribution Date and the Group III Class A
Certificates and the Group III Mezzanine Certificates, the lesser of (i)
One-Month LIBOR plus the related Certificate Margin and (ii) the Maximum Cap
Rate.
"Xxxxxxx Mac": Xxxxxxx Mac, formally known as the Federal Home
Loan Mortgage Corporation, or any successor thereto.
"GMAC": GMAC Mortgage Corporation, or any successor Servicer
of the Group I Mortgage Loans and the Group II Mortgage Loans appointed as
herein provided, in its capacity as a Servicer hereunder.
"Gross Margin": With respect to each Group III Mortgage Loan,
the fixed percentage set forth in the related Mortgage Note that is added to the
Index on each Adjustment Date in accordance with the terms of the related
Mortgage Note used to determine the Mortgage Rate for such Group III Mortgage
Loan.
"Group I Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (1) the sum of (a) the aggregate of the
amounts on deposit in the related Collection Account and Distribution Account as
of the close of business on the related Determination Date with respect to the
Group I Mortgage Loans, (b) the aggregate of any amounts received in respect of
an REO Property in Loan Group I withdrawn from any REO Account and deposited in
the Distribution Account for such Distribution Date pursuant to Section 3.23,
(c) the aggregate of any amounts deposited in the Distribution Account by the
related Servicer in respect of Prepayment Interest Shortfalls on the Group I
Mortgage Loans for such Distribution Date pursuant to Section 3.24, (d) the
aggregate of any P&I Advances made by the related Servicer on the Group I
Mortgage Loans for such Distribution Date pursuant to Section 4.03 and (e) the
aggregate of any P&I Advances or Servicing Advances made on the Group I Mortgage
Loans by the Trustee as a successor Servicer or any other successor Servicer for
such Distribution Date pursuant to Section 7.02, reduced (to not less than
zero), by (2) the portion of the amount described in clause (1)(a) above that
represents (i) Monthly Payments on the Group I Mortgage Loans received from a
Mortgagor on or prior to the Determination Date but due during any Due Period
subsequent to the related Due Period, (ii) Principal Prepayments on the Group I
Mortgage Loans received after the related Prepayment Period (together with any
interest payments received with such Principal Prepayments to the extent they
represent the payment of interest accrued on the Group I Mortgage Loans during a
period subsequent to the related Prepayment Period), (iii) Liquidation Proceeds
and Insurance Proceeds received in respect of the Group I Mortgage Loans after
the related Prepayment Period, (iv) amounts reimbursable or payable to the
Depositor, the related Servicer, the Trustee, the Seller or any Sub-Servicer
pursuant to Section 3.11 or Section 3.12 or otherwise payable in respect of
Extraordinary Trust Fund Expenses, (v) the Trustee Fee in respect of the Group I
Mortgage Loans payable from the Distribution Account pursuant to Section 8.05,
(vi) amounts deposited in the related Collection Account or the Distribution
Account with respect to the Group I Mortgage Loans in error and (vii) the amount
of any Prepayment Charges collected by the related Servicer in connection with
the Principal Prepayment of any of the Group I Mortgage Loans or any Servicer
Prepayment Charge Payment Amount with respect to the Group I Mortgage Loans.
-17-
"Group I Class A Certificates": The Class A-I-1 Certificates,
the Class A-I-2 Certificates, the Class A-I-3 Certificates, the Class A-I-4
Certificates, the Class A-I-5 Certificates, the Class A-I-6 Certificates, the
Class A-I-7 Certificates, the Class A-I-8 Certificates and the Class A-I-9
Certificates.
"Group I Class A Principal Distribution Amount": With respect
to any Distribution Date, the excess of (x) the aggregate Certificate Principal
Balance of the Group I Class A Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) approximately
72.00% and (ii) the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period and (B) the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the last day of the
related Due Period minus $3,637,741.
"Group I Credit Enhancement Percentage": For any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is the sum
of the aggregate Certificate Principal Balance of the Group I Mezzanine
Certificates and the Class CE-I Certificates calculated after taking into
account payments of principal on the Group I Mortgage Loans and distribution of
the Group I Principal Distribution Amount to the Certificates then entitled to
distributions of principal on such Distribution Date, and the denominator of
which is the aggregate Stated Principal Balance of the Group I Mortgage Loans.
"Group I Delinquency Percentage": As of the last day of the
related Due Period, the percentage equivalent of a fraction, the numerator of
which is the aggregate Stated Principal Balance of all Group I Mortgage Loans
that, as of the last day of the previous calendar month, are 60 or more days
delinquent, are in foreclosure, have been converted to REO Properties or are in
bankruptcy (and delinquent 60 days or more), and the denominator of which is the
aggregate Stated Principal Balance of the Group I Mortgage Loans and REO
Properties in Loan Group I as of the last day of the previous calendar month;
provided, however, that any Mortgage Loan purchased by the related Servicer
pursuant to Section 3.16(c) shall not be included in either the numerator or the
denominator for purposes of calculating the Group I Delinquency Percentage.
"Group I Excess Overcollateralized Amount": With respect to
the Group I Class A Certificates and the Group I Mezzanine Certificates and any
Distribution Date, the excess, if any, of (i) the Group I Overcollateralized
Amount for such Distribution Date (calculated for this purpose only after
assuming that 100% of the sum of the Group I Principal Remittance Amount on such
Distribution Date has been distributed) over (ii) the Group I
Overcollateralization Target Amount for such Distribution Date.
"Group I Initial Deposit": With respect to the Closing Date,
the cash deposited by the Depositor with respect to the Group I Principal
Remittance Amount pursuant to Section 3.10(g).
"Group I Interest Remittance Amount": With respect to any
Distribution Date, that portion of the Available Distribution Amount for such
Distribution Date allocable to interest on the Group I Mortgage Loans. With
respect to the first Distribution Date, the Group I Interest Remittance Amount
will also include $11,237.42 deposited on the Closing Date pursuant to Section
3.10(g).
"Group I Marker Rate": With respect to the Class CE-I
Certificates and any Distribution
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Date, a per annum rate equal to two (2) times the weighted average of the REMIC
II Remittance Rate for REMIC II Regular Interest II-LTAI1, REMIC II Regular
Interest II-LTAI2, REMIC II Regular Interest II-LTAI3, REMIC II Regular Interest
II-LTAI4, REMIC II Regular Interest II-LTAI5, REMIC II Regular Interest
II-LTAI6, REMIC II Regular Interest II-LTAI7, REMIC II Regular Interest
II-LTAI8, REMIC II Regular Interest II-LTAI9, REMIC II Regular Interest
II-LTMI1, REMIC II Regular Interest II-LTMI2, REMIC II Regular Interest II-LTB1
and REMIC II Regular Interest II-LTZZ1, with the rate on each such REMIC II
Regular Interest (other than REMIC II Regular Interest II-LTZZ1) subject to a
cap equal to the related Pass-Through Rate for the Corresponding Certificate for
the purpose of this calculation for such Distribution Date and with the rate on
REMIC II Regular Interest II-LTZZ1 subject to a cap of zero for the purpose of
this calculation; provided, however, that for this purpose, calculations of the
REMIC II Remittance Rate and the related cap with respect to REMIC II Regular
Interest II-LTAI1 shall be multiplied by a fraction, the numerator of which is
30 and the denominator of which is the actual number of days elapsed in the
related Accrual Period.
"Group I Mezzanine Certificates": The Class M-I-1
Certificates, the Class M-I-2 Certificates and the Class B-I Certificates.
"Group I Mortgage Loan": Each of the Mortgage Loans identified
in the Mortgage Loan Schedule as having a Mortgage Rate that is fixed for the
life of the Mortgage Loan and having a principal balance at origination that
conforms with Xxxxxx Xxx and Xxxxxxx Mac loan limits.
"Group I Net Monthly Excess Cashflow": With respect to any
Distribution Date, the sum of (i) any Group I Overcollateralization Reduction
Amount for such Distribution Date and (ii) the excess of (x) the Group I
Available Distribution Amount for such Distribution Date over (y) the sum for
such Distribution Date of (A) the Senior Interest Distribution Amount payable to
the holders of the Group I Class A Certificates and the Class M-I-1 Certificates
and the Interest Distribution Amount payable to the holders of the Group I
Mezzanine Certificates (other than the Class M-I-1 Certificates), (B) any
amounts paid to the Certificate Insurer or the Guarantor from the Group I
Interest Remittance Amount, (C) any amounts distributed to the holders of the
Group II Class A Certificates and the Group III Class A Certificates from the
Group I Interest Remittance Amount and (D) the Group I Principal Remittance
Amount.
"Group I Net WAC Rate Carryover Reserve Account": The account
established and maintained pursuant to Section 3.28.
"Group I Overcollateralization Increase Amount": With respect
to any Distribution Date, the lesser of (a) the amount of Accrued Certificate
Interest distributable on the Class CE-I Certificates on such Distribution Date
as reduced by Realized Losses allocated thereto with respect to such
Distribution Date pursuant to Section 4.04 and (b) the excess, if any, of (a)
the Group I Overcollateralization Target Amount applicable to such Distribution
Date over (b) the Group I Overcollateralized Amount applicable to such
Distribution Date (calculated for this purpose only after assuming that 100% of
the Group I Principal Remittance Amount on such Distribution Date has been
distributed).
"Group I Overcollateralization Reduction Amount": With respect
to any Distribution Date,
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an amount equal to the lesser of (a) the Group I Excess Overcollateralized
Amount and (b) the Group I Principal Remittance Amount.
"Group I Overcollateralization Target Amount": With respect to
any Distribution Date (a) prior to the Group I Stepdown Date, an amount equal to
3.00% of the sum of the aggregate Stated Principal Balance of the Group I
Mortgage Loans as of the Cut-off Date and the Group I Initial Deposit; (b) on or
after the Group I Stepdown Date provided a Group I Trigger Event is not in
effect, the greater of (i) 6.00% of the then current aggregate outstanding
Stated Principal Balance of the Group I Mortgage Loans as of the last day of the
related Due Period and (ii) $3,367,741; and (c) on or after the Group I Stepdown
Date and if a Group I Trigger Event is in effect, the Group I
Overcollateralization Target Amount for the immediately preceding Distribution
Date.
"Group I Overcollateralized Amount": With respect to any
Distribution Date, the excess, if any, of (a) the sum of the aggregate Stated
Principal Balances of the Group I Mortgage Loans and REO Properties in Loan
Group I as of the last day of the related Due Period and the Group I Initial
Deposit over (b) the sum of the aggregate Certificate Principal Balance of the
Group I Class A Certificates, the Group I Mezzanine Certificates and the Class
P-I Certificates after giving effect to distributions to be made on such
Distribution Date.
"Group I Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the principal portion of each Monthly Payment
on the Group I Mortgage Loans due during the related Due Period, whether or not
received on or prior to the related Determination Date; (ii) the Stated
Principal Balance of any Group I Mortgage Loan that was purchased during the
related Prepayment Period pursuant to or as contemplated by Section 2.03,
Section 3.16(c) or Section 9.01 and the amount of any shortfall deposited in the
related Collection Account in connection with the substitution of a Deleted
Mortgage Loan in Loan Group I pursuant to Section 2.03 during the related
Prepayment Period; (iii) the principal portion of all other unscheduled
collections (including, without limitation, Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds, Subsequent Recoveries and REO Principal
Amortization) received during the related Prepayment Period on the Group I
Mortgage Loans, net of any portion thereof that represents a recovery of
principal for which an advance was made by the related Servicer pursuant to
Section 4.03 in respect of a preceding Distribution Date; and (iv) the amount of
any Group I Overcollateralization Increase Amount for such Distribution Date
MINUS (v) the the amount of any Group I Overcollateralization Reduction Amount
for such Distribution Date.
"Group I Principal Remittance Amount": With respect to any
Distribution Date, the sum of the amounts set forth in clauses (i) through (iii)
of the definition of Group I Principal Distribution Amount. With respect to the
first Distribution Date, the Group I Principal Remittance Amount will also
include the Group I Initial Deposit.
"Group I Stepdown Date": The earlier to occur of (i) the
Distribution Date on which the aggregate Certificate Principal Balance of the
Group I Class A Certificates has been reduced to zero and (ii) the later to
occur of (a) the Distribution Date occurring in August 2007 and (b) the first
Distribution Date on which the Group I Credit Enhancement Percentage (calculated
for this purpose only after taking into
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account payments of principal on the Group I Mortgage Loans but prior to any
distribution of the Group I Principal Distribution Amount on the Certificates
then entitled to distributions of principal on such Distribution Date) is equal
to or greater than 28.00%.
"Group I Trigger Event": A Group I Trigger Event is in effect
with respect to any Distribution Date on or after the Group I Stepdown Date if:
(a) the Group I Delinquency Percentage exceeds 50.00% of the
then current Group I Credit Enhancement Percentage for the prior Distribution
Date or
(b) the aggregate amount of Realized Losses on the Group I
Mortgage Loans incurred since the Cut-off Date through the last day of the
related Due Period (reduced by the aggregate amount of Subsequent Recoveries
received on the Group I Mortgage Loans since the Cut-off Date through the last
day of the related Due Period) divided by the sum of the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the Cut-off Date and the
Group I Initial Deposit exceeds the applicable percentages set forth below with
respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
August 2007 through July 2008 1.25%
August 2008 through July 2009 2.00%
August 2009 through July 2010 2.75%
August 2010 through July 2011 3.25%
"Group II Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (1) the sum of (a) the aggregate of the
amounts on deposit in the related Collection Account and Distribution Account as
of the close of business on the related Determination Date with respect to the
Group II Mortgage Loans, (b) the aggregate of any amounts received in respect of
an REO Property in Loan Group II withdrawn from any REO Account and deposited in
the Distribution Account for such Distribution Date pursuant to Section 3.23,
(c) the aggregate of any amounts deposited in the Distribution Account by the
related Servicer in respect of Prepayment Interest Shortfalls on the Group II
Mortgage Loans for such Distribution Date pursuant to Section 3.24, (d) the
aggregate of any P&I Advances made by the related Servicer on the Group II
Mortgage Loans for such Distribution Date pursuant to Section 4.03 and (e) the
aggregate of any P&I Advances or Servicing Advances made on the Group II
Mortgage Loans by the Trustee as a successor Servicer or any other successor
Servicer for such Distribution Date pursuant to Section 7.02, reduced (to not
less than zero), by (2) the portion of the amount described in clause (1)(a)
above that represents (i) Monthly Payments on the Group II Mortgage Loans
received from a Mortgagor on or prior to the Determination Date but due during
any Due Period subsequent to the related Due Period, (ii) Principal Prepayments
on the Group II Mortgage Loans received after the related Prepayment Period
(together with any interest payments received with such Principal Prepayments to
the extent they represent the payment of interest accrued on the Group II
Mortgage Loans during a period subsequent to the related Prepayment Period),
(iii) Liquidation Proceeds and Insurance Proceeds received in respect of the
Group II Mortgage Loans after the related Prepayment Period, (iv) amounts
reimbursable or payable to the Depositor, the related Servicer, the Trustee, the
Seller or any Sub- Servicer pursuant to Section 3.11 or Section 3.12 or
otherwise payable in respect of Extraordinary Trust
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Fund Expenses, (v) the Trustee Fee in respect of the Group II Mortgage Loans
payable from the Distribution Account pursuant to Section 8.05, (vi) amounts
deposited in the related Collection Account or the Distribution Account with
respect to the Group II Mortgage Loans in error and (vii) the amount of any
Prepayment Charges collected by the related Servicer in connection with the
Principal Prepayment of any of the Group II Mortgage Loans or any Servicer
Prepayment Charge Payment Amount with respect to the Group II Mortgage Loans.
"Group II Class A Certificates": The Class A-II-1
Certificates, the Class A-II-2 Certificates, the Class A-II-3 Certificates, the
Class A-II-4 Certificates, the Class A-II-5 Certificates, the Class A-II-6
Certificates, the Class A-II-7 Certificates, the Class A-II-8 Certificates and
the Class A-II-9 Certificates.
"Group II Class A Principal Distribution Amount": With respect
to any Distribution Date, the excess of (x) the aggregate Certificate Principal
Balance of the Group II Class A Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) approximately
90.00% and (ii) the aggregate Stated Principal Balance of the Group II Mortgage
Loans as of the last day of the related Due Period and (B) the aggregate Stated
Principal Balance of the Group II Mortgage Loans as of the last day of the
related Due Period minus $2,381,160.
"Group II Credit Enhancement Percentage": For any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is the sum
of the aggregate Certificate Principal Balance of the Group II Mezzanine
Certificates and the Class CE-I Certificates calculated after taking into
account payments of principal on the Group II Mortgage Loans and distribution of
the Group II Principal Distribution Amount to the Certificates then entitled to
distributions of principal on such Distribution Date, and the denominator of
which is the aggregate Stated Principal Balance of the Group II Mortgage Loans.
"Group II Delinquency Percentage": As of the last day of the
related Due Period, the percentage equivalent of a fraction, the numerator of
which is the aggregate Stated Principal Balance of all Group II Mortgage Loans
that, as of the last day of the previous calendar month, are 60 or more days
delinquent, are in foreclosure, have been converted to REO Properties or are in
bankruptcy (and Delinquent 60 days or more), and the denominator of which is the
aggregate Stated Principal Balance of the Group II Mortgage Loans and REO
Properties in Loan Group II as of the last day of the previous calendar month;
provided, however, that any Mortgage Loan purchased by the related Servicer
pursuant to Section 3.16(c) shall not be included in either the numerator or the
denominator for purposes of calculating the Group II Delinquency Percentage.
"Group II Excess Overcollateralized Amount": With respect to
the Group II Class A Certificates and the Group II Mezzanine Certificates and
any Distribution Date, the excess, if any, of (i) the Group II
Overcollateralized Amount for such Distribution Date (calculated for this
purpose only after assuming that 100% of the sum of the Group II Principal
Remittance Amount on such Distribution Date has been distributed) over (ii) the
Group II Overcollateralization Target Amount for such Distribution Date.
"Group II Interest Remittance Amount": With respect to any
Distribution Date, that portion
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of the Available Distribution Amount for such Distribution Date allocable to
interest on the Group II Mortgage Loans.
"Group II Marker Rate": With respect to the Class CE-II
Certificates and any Distribution Date, a per annum rate equal to two (2) times
the weighted average of the REMIC II Remittance Rate for REMIC II Regular
Interest II-LTAII1, REMIC II Regular Interest II-LTAII2, REMIC II Regular
Interest II-LTAII3, REMIC II Regular Interest II-LTAII4, REMIC II Regular
Interest II-LTAII5, REMIC II Regular Interest II-LTAII6, REMIC II Regular
Interest II-LTAII7, REMIC II Regular Interest II-LTAII8, REMIC II Regular
Interest II-LTAII9, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTB2 and REMIC II Regular Interest II-LTZZ2, with the rate on each such REMIC
II Regular Interest (other than REMIC II Regular Interest II-LTZZ2) subject to a
cap equal to the related Pass-Through Rate for the Corresponding Certificate for
the purpose of this calculation for such Distribution Date and with the rate on
REMIC II Regular Interest II-LTZZ2 subject to a cap of zero for the purpose of
this calculation; provided, however, that for this purpose, calculations of the
REMIC II Remittance Rate and the related cap with respect to REMIC II Regular
Interest IILTAII1 shall be multiplied by a fraction, the numerator of which is
30 and the denominator of which is the actual number of days elapsed in the
related Accrual Period.
"Group II Mezzanine Certificates": The Class M-II Certificates
and the Class B-II Certificates.
"Group II Mortgage Loan": Each of the Mortgage Loans
identified in the Mortgage Loan Schedule as having a Mortgage Rate that is fixed
for the life of the Mortgage Loan and having a principal balance at origination
that may or may not conform with Xxxxxx Mae and Xxxxxxx Mac loan limits.
"Group II Net Monthly Excess Cashflow": With respect to any
Distribution Date, the sum of (i) any Group II Overcollateralization Reduction
Amount for such Distribution Date and (ii) the excess of (x) the Group II
Available Distribution Amount for such Distribution Date over (y) the sum for
such Distribution Date of (A) the Senior Interest Distribution Amount payable to
the holders of the Group II Class A Certificates and the Interest Distribution
Amount payable to the holders of the Group II Mezzanine Certificates, (B) any
amounts paid to the Certificate Insurer or the Guarantor from the Group II
Interest Remittance Amount, (C) any amounts distributed to the holders of the
Group I Class A Certificates and the Group III Class A Certificates from the
Group II Interest Remittance Amount and (D) the Group II Principal Remittance
Amount.
"Group II Net WAC Rate Carryover Reserve Account": The account
established and maintained pursuant to Section 3.28.
"Group II Overcollateralization Increase Amount": With respect
to any Distribution Date, the lesser of (a) the amount of Accrued Certificate
Interest distributable on the Class CE-I Certificates on such Distribution Date
as reduced by Realized Losses allocated thereto with respect to such
Distribution Date pursuant to Section 4.04 and (b) the excess, if any, of (a)
the Group II Overcollateralization Target Amount applicable to such Distribution
Date over (b) the Group II Overcollateralized Amount applicable
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to such Distribution Date (calculated for this purpose only after assuming that
100% of the Group II Principal Remittance Amount on such Distribution Date has
been distributed).
"Group II Overcollateralization Reduction Amount": With
respect to any Distribution Date, an amount equal to the lesser of (a) the Group
II Excess Overcollateralized Amount and (b) the Group II Principal Remittance
Amount.
"Group II Overcollateralization Target Amount": With respect
to any Distribution Date (a) prior to the Group II Stepdown Date, an amount
equal to 3.00% of the aggregate Stated Principal Balance of the Group II
Mortgage Loans as of the Cut-off Date; (b) on or after the Group II Stepdown
Date provided a Group II Trigger Event is not in effect, the greater of (i)
6.00% of the then current aggregate outstanding Stated Principal Balance of the
Group II Mortgage Loans as of the last day of the related Due Period and (ii)
$2,381,161; and (c) on or after the Group II Stepdown Date and if a Group II
Trigger Event is in effect, the Group II Overcollateralization Target Amount for
the immediately preceding Distribution Date.
"Group II Overcollateralized Amount": With respect to any
Distribution Date, the excess, if any, of (a) the aggregate Stated Principal
Balances of the Group II Mortgage Loans and REO Properties in Loan Group II as
of the last day of the related Due Period over (b) the sum of the aggregate
Certificate Principal Balance of the Group II Class A Certificates, the Group II
Mezzanine Certificates and the Class P-I Certificates after giving effect to
distributions to be made on such Distribution Date.
"Group II Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the principal portion of each Monthly Payment
on the Group II Mortgage Loans due during the related Due Period, whether or not
received on or prior to the related Determination Date; (ii) the Stated
Principal Balance of any Group II Mortgage Loan that was purchased during the
related Prepayment Period pursuant to or as contemplated by Section 2.03,
Section 3.16(c) or Section 9.01 and the amount of any shortfall deposited in the
related Collection Account in connection with the substitution of a Deleted
Mortgage Loan in Loan Group II pursuant to Section 2.03 during the related
Prepayment Period; (iii) the principal portion of all other unscheduled
collections (including, without limitation, Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds, Subsequent Recoveries and REO Principal
Amortization) received during the related Prepayment Period on the Group II
Mortgage Loans, net of any portion thereof that represents a recovery of
principal for which an advance was made by the related Servicer pursuant to
Section 4.03 in respect of a preceding Distribution Date; and (iv) the amount of
any Group II Overcollateralization Increase Amount for such Distribution Date
MINUS (v) the amount of any Group II Overcollateralization Reduction Amount for
such Distribution Date.
"Group II Principal Remittance Amount": With respect to any
Distribution Date, the sum of the amounts set forth in clauses (i) through (iii)
of the definition of Group II Principal Distribution Amount.
"Group II Stepdown Date": The earlier to occur of (i) the
Distribution Date on which the aggregate Certificate Principal Balance of the
Group II Class A Certificates has been reduced to zero and (ii) the later to
occur of (a) the Distribution Date occurring in August 2007 and (b) the first
Distribution Date
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on which the Group II Credit Enhancement Percentage (calculated for this purpose
only after taking into account payments of principal on the Group II Mortgage
Loans but prior to any distribution of the Group II Principal Distribution
Amount on the Certificates then entitled to distributions of principal on such
Distribution Date) is equal to or greater than 10.00%.
"Group II Trigger Event": A Group II Trigger Event is in
effect with respect to any Distribution Date on or after the Group II Stepdown
Date if:
(a) the Group II Delinquency Percentage exceeds 50.00% of the
then current Group II Credit Enhancement Percentage for the prior Distribution
Date or
(b) the aggregate amount of Realized Losses on the Group II
Mortgage Loans incurred since the Cut-off Date through the last day of the
related Due Period (reduced by the aggregate amount of Subsequent Recoveries
received on the Group II Mortgage Loans since the Cut-off Date through the last
day of the related Due Period) divided by aggregate Stated Principal Balance of
the Group II Mortgage Loans as of the Cut-off Date exceeds the applicable
percentages set forth below with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
August 2007 through July 2008 1.25%
August 2008 through July 2009 2.00%
August 2009 through July 2010 2.75%
August 2010 through July 2011 3.25%
"Group III-A Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group III-A Principal Remittance Amount for such Distribution
Date and the denominator of which is (y) the Group III Principal Remittance
Amount for such Distribution Date.
"Group III-A Initial Deposit": With respect to the Closing
Date, the cash deposited by the Depositor with respect to the Group III-A
Principal Remittance Amount pursuant to Section 3.10(g).
"Group III-A Interest Remittance Amount": With respect to any
Distribution Date, that portion of the Available Distribution Amount for such
Distribution Date allocable to interest on the Group III-A Mortgage Loans. With
respect to the first Distribution Date, the Group III-A Interest Remittance
Amount will also include $2,850.38 deposited on the Closing Date pursuant to
Section 3.10(g).
"Group III-A Mortgage Loan": Each of the Mortgage Loans
identified in the Mortgage Loan Schedule as having a Mortgage Rate that is
adjustable and having a principal balance at origination that conforms with
Xxxxxx Mae and Xxxxxxx Mac loan limits.
"Group III-A Principal Distribution Amount": With respect to
any Distribution Date, the sum of (i) the principal portion of each Monthly
Payment on the Group III-A Mortgage Loans due during the related Due Period,
whether or not received on or prior to the related Determination Date; (ii) the
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Stated Principal Balance of any Group III-A Mortgage Loan that was purchased
during the related Prepayment Period pursuant to or as contemplated by Section
2.03, Section 3.16(c) or Section 9.01 and the amount of any shortfall deposited
in the related Collection Account in connection with the substitution of a
Deleted Mortgage Loan in Loan Group III-A pursuant to Section 2.03 during the
related Prepayment Period; (iii) the principal portion of all other unscheduled
collections (including, without limitation, Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds, Subsequent Recoveries and REO Principal
Amortization) received during the related Prepayment Period on the Group III-A
Mortgage Loans, net of any portion thereof that represents a recovery of
principal for which an advance was made by the related Servicer pursuant to
Section 4.03 in respect of a preceding Distribution Date; and (iv) the Group
III-A Allocation Percentage of the amount of any Group III Overcollateralization
Increase Amount for such Distribution Date MINUS (v) the Group III-A Allocation
Percentage of the amount of any Group III Overcollateralization Reduction Amount
for such Distribution Date.
"Group III-A Principal Remittance Amount": With respect to any
Distribution Date, the sum of the amounts set forth in clauses (i) through (iii)
of the definition of Group III-A Principal Distribution Amount. With respect to
the first Distribution Date, the Group III-A Principal Remittance Amount will
also include the Group III-A Initial Deposit.
"Group III-B Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group III-B Principal Remittance Amount for such Distribution
Date and the denominator of which is (y) the Group III Principal Remittance
Amount for such Distribution Date.
"Group III-B Certificates": The Class A-III-B1 Certificates
and the Class A-III-B2 Certificates.
"Group III-B Initial Deposit": With respect to the Closing
Date, the cash deposited by the Depositor with respect to the Group III-B
Principal Remittance Amount pursuant to Section 3.10(g)
"Group III-B Interest Remittance Amount": With respect to any
Distribution Date, that portion of the Available Distribution Amount for such
Distribution Date allocable to interest on the Group III-B Mortgage Loans. With
respect to the first Distribution Date, the Group III-B Interest Remittance
Amount will also include $2,224.06 deposited on the Closing Date pursuant to
Section 3.10(g).
"Group III-B Mortgage Loan": Each of the Mortgage Loans
identified in the Mortgage Loan Schedule as having a Mortgage Rate that is
adjustable and having a principal balance at origination that may or may not
conform with Xxxxxx Mae and Xxxxxxx Mac loan limits.
"Group III-B Principal Distribution Amount": With respect to
any Distribution Date, the sum of (i) the principal portion of each Monthly
Payment on the Group III-B Mortgage Loans due during the related Due Period,
whether or not received on or prior to the related Determination Date; (ii) the
Stated Principal Balance of any Group III-B Mortgage Loan that was purchased
during the related Prepayment Period pursuant to or as contemplated by Section
2.03, Section 3.16(c) or Section 9.01 and
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the amount of any shortfall deposited in the related Collection Account in
connection with the substitution of a Deleted Mortgage Loan in Loan Group III-B
pursuant to Section 2.03 during the related Prepayment Period; (iii) the
principal portion of all other unscheduled collections (including, without
limitation, Principal Prepayments, Insurance Proceeds, Liquidation Proceeds,
Subsequent Recoveries and REO Principal Amortization) received during the
related Prepayment Period on the Group III-B Mortgage Loans, net of any portion
thereof that represents a recovery of principal for which an advance was made by
the related Servicer pursuant to Section 4.03 in respect of a preceding
Distribution Date; and (iv) the Group III-B Allocation Percentage of the amount
of any Group III Overcollateralization Increase Amount for such Distribution
Date MINUS (v) the Group III-B Allocation Percentage of the amount of any Group
III Overcollateralization Reduction Amount for such Distribution Date.
"Group III-B Principal Remittance Amount": With respect to any
Distribution Date, the sum of the amounts set forth in clauses (i) through (iii)
of the definition of Group III-B Principal Distribution Amount. With respect to
the first Distribution Date, the Group III-B Principal Remittance Amount will
also include the Group III-B Initial Deposit.
"Group III Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (1) the sum of (a) the aggregate of the
amounts on deposit in the related Collection Account and Distribution Account as
of the close of business on the related Determination Date with respect to the
Group III Mortgage Loans, (b) the aggregate of any amounts received in respect
of an REO Property in Loan Group III withdrawn from any REO Account and
deposited in the Distribution Account for such Distribution Date pursuant to
Section 3.23, (c) the aggregate of any amounts deposited in the Distribution
Account by the related Servicer in respect of Prepayment Interest Shortfalls on
the Group III Mortgage Loans for such Distribution Date pursuant to Section
3.24, (d) the aggregate of any P&I Advances made by the related Servicer on the
Group III Mortgage Loans for such Distribution Date pursuant to Section 4.03 and
(e) the aggregate of any P&I Advances or Servicing Advances made on the Group
III Mortgage Loans by the Trustee as a successor Servicer or any other successor
Servicer for such Distribution Date pursuant to Section 7.02, reduced (to not
less than zero), by (2) the portion of the amount described in clause (1)(a)
above that represents (i) Monthly Payments on the Group III Mortgage Loans
received from a Mortgagor on or prior to the Determination Date but due during
any Due Period subsequent to the related Due Period, (ii) Principal Prepayments
on the Group III Mortgage Loans received after the related Prepayment Period
(together with any interest payments received with such Principal Prepayments to
the extent they represent the payment of interest accrued on the Group III
Mortgage Loans during a period subsequent to the related Prepayment Period),
(iii) Liquidation Proceeds and Insurance Proceeds received in respect of the
Group III Mortgage Loans after the related Prepayment Period, (iv) amounts
reimbursable or payable to the Depositor, the related Servicer, the Trustee, the
Seller or any Sub-Servicer pursuant to Section 3.11 or Section 3.12 or otherwise
payable in respect of Extraordinary Trust Fund Expenses, (v) the Trustee Fee in
respect of the Group III Mortgage Loans payable from the Distribution Account
pursuant to Section 8.05, (vi) amounts deposited in the related Collection
Account or the Distribution Account with respect to the Group III Mortgage Loans
in error and (vii) the amount of any Prepayment Charges collected by the related
Servicer in connection with the Principal Prepayment of any of the Group III
Mortgage Loans or any Servicer Prepayment Charge Payment Amount with respect to
the Group III Mortgage Loans.
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"Group III Cap Contract": The cap contract between the Trustee
and the counterparty thereunder for the benefit of the Holders of the Group III
Class A Certificates and the Group III Mezzanine Certificates.
"Group III Class A Certificates": The Class A-III-A
Certificates, the Class A-III-B1 Certificates and the Class A-III-B2
Certificates.
"Group III Class A Principal Distribution Amount": With
respect to any Distribution Date, the excess of (x) the aggregate Certificate
Principal Balance of the Group III Class A Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 92.00% and
(ii) the aggregate Stated Principal Balance of the Group III Mortgage Loans as
of the last day of the related Due Period and (B) the aggregate Stated Principal
Balance of the Group III Mortgage Loans as of the last day of the related Due
Period minus $2,378,082.
"Group III Credit Enhancement Percentage": For any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is the sum of the aggregate Certificate Principal Balance of the Group III
Mezzanine Certificates and the Class CE-III Certificates calculated after taking
into account payments of principal on the Group II Mortgage Loans and
distribution of the Group III Principal Distribution Amount to the Certificates
then entitled to distributions of principal on such Distribution Date, and the
denominator of which is the aggregate Stated Principal Balance of the Group III
Mortgage Loans.
"Group III Delinquency Percentage": As of the last day of the
related Due Period, the percentage equivalent of a fraction, the numerator of
which is the aggregate Stated Principal Balance of all Group III Mortgage Loans
that, as of the last day of the previous calendar month, are 60 or more days
delinquent, are in foreclosure, have been converted to REO Properties or are in
bankruptcy (and Delinquent 60 days or more), and the denominator of which is the
aggregate Stated Principal Balance of the Group III Mortgage Loans and REO
Properties in Loan Group III as of the last day of the previous calendar month;
provided, however, that any Mortgage Loan purchased by the related Servicer
pursuant to Section 3.16(c) shall not be included in either the numerator or the
denominator for purposes of calculating the Group III Delinquency Percentage.
"Group III Excess Overcollateralized Amount": With respect to
the Group III Class A Certificates and the Group III Mezzanine Certificates and
any Distribution Date, the excess, if any, of (i) the Group III
Overcollateralized Amount for such Distribution Date (calculated for this
purpose only after assuming that 100% of the Group III Principal Remittance
Amount on such Distribution Date has been distributed) over (ii) the Group III
Overcollateralization Target Amount for such Distribution Date.
"Group III Marker Rate": With respect to the Class CE-III
Certificates and any Distribution Date, a per annum rate equal to two (2) times
the weighted average of the REMIC II Remittance Rate for REMIC II Regular
Interest II-LTAIII1, REMIC II Regular Interest II-LTAIII2, REMIC II Regular
Interest II-LTAIII3, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest II-LTB3 and REMIC II Regular Interest II-LTZZ3, with the rate on each
such REMIC II Regular Interest (other than REMIC II Regular Interest II-LTZZ3)
subject to a cap equal to the related Pass-Through Rate
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for the Corresponding Certificate for the purpose of this calculation for such
Distribution Date and with the rate on REMIC II Regular Interest II-LTZZ3
subject to a cap of zero for the purpose of this calculation; provided, however,
that for this purpose, calculations of the REMIC II Remittance Rate and the
related caps with respect to each such REMIC II Regular Interest (other than
REMIC II Regular Interest II- LTZZ3) shall be multiplied by a fraction, the
numerator of which is 30 and the denominator of which is the actual number of
days elapsed in the related Accrual Period.
"Group III Mezzanine Certificates": The Class M-III
Certificates and the Class B-III Certificates.
"Group III Mortgage Loan": The Group III-A Mortgage Loans and
the Group III-B Mortgage Loans.
"Group III Net Monthly Excess Cashflow": With respect to any
Distribution Date, the sum of (i) any Group III Overcollateralization Reduction
Amount for such Distribution Date and (ii) the excess of (x) the Group III
Available Distribution Amount for such Distribution Date over (y) the sum for
such Distribution Date of (A) the Senior Interest Distribution Amount payable to
the holders of the Group III Class A Certificates and the Interest Distribution
Amount payable to the holders of the Group III Mezzanine Certificates, (B) any
amounts paid to the Certificate Insurer or the Guarantor from the Group III-A
Interest Remittance Amount and the Group III-B Interest Remittance Amount, (C)
any amount distributed to the Holders of the Group I Class A Certificates and
the Group II Class A Certificates from the Group III-A Interest Remittance
Amount or the Group III-B Interest Remittance Amount and (D) the Group III
Principal Remittance Amount.
"Group III Net WAC Rate Carryover Reserve Account": The
account established and maintained pursuant to Section 3.28.
"Group III Overcollateralization Increase Amount": With
respect to any Distribution Date, the lesser of (a) the amount of Accrued
Certificate Interest distributable on the Class CE-III Certificates on such
Distribution Date as reduced by Realized Losses allocated thereto with respect
to such Distribution Date pursuant to Section 4.04 and (b) the excess, if any,
of (a) the Group III Overcollateralization Target Amount applicable to such
Distribution Date over (b) the Group III Overcollateralized Amount applicable to
such Distribution Date (calculated for this purpose only after assuming that
100% of the Group III Principal Remittance Amount on such Distribution Date has
been distributed).
"Group III Overcollateralization Reduction Amount": With
respect to any Distribution Date, an amount equal to the lesser of (a) the Group
III Excess Overcollateralized Amount and (b) the Group III Principal Remittance
Amount.
"Group III Overcollateralization Target Amount": With respect
to any Distribution Date (a) prior to the Group III Stepdown Date, an amount
equal to 1.50% of the sum of the aggregate Stated Principal Balance of the Group
III Mortgage Loans as of the Cut-off Date, the Group III-A Initial Deposit and
the Group III-B Initial Deposit ; (b) on or after the Group III Stepdown Date
provided a Group III
-29-
Trigger Event is not in effect, the greater of (i) 3.00% of the then current
aggregate outstanding Stated Principal Balance of the Group III Mortgage Loans
as of the last day of the related Due Period and (ii) $2,378,082; and (c) on or
after the Group III Stepdown Date and if a Group III Trigger Event is in effect,
the Group III Overcollateralization Target Amount for the immediately preceding
Distribution Date.
"Group III Overcollateralized Amount": With respect to any
Distribution Date, the excess, if any, of (a) the sum of the aggregate Stated
Principal Balances of the Group III Mortgage Loans and REO Properties in Loan
Group III as of the last day of the related Due Period, the Group III-A Initial
Deposit and the Group III-B Initial Deposit over (b) the sum of the aggregate
Certificate Principal Balance of the Group III Class A Certificates, the Group
III Mezzanine Certificates and the Class P-III Certificates after giving effect
to distributions to be made on such Distribution Date.
"Group III Principal Remittance Amount": With respect to any
Distribution Date, the sum of (i) the Group III-A Principal Remittance Amount
and (ii) the Group III-B Principal Remittance Amount.
"Group III Stepdown Date": The earlier to occur of (i) the
Distribution Date on which the aggregate Certificate Principal Balance of the
Group III Class A Certificates has been reduced to zero and (ii) the later to
occur of (a) the Distribution Date occurring in August 2007 and (b) the first
Distribution Date on which the Group III Credit Enhancement Percentage
(calculated for this purpose only after taking into account payments of
principal on the Group III Mortgage Loans but prior to any distribution of the
Group III-A Principal Distribution Amount and the Group III-B Principal
Distribution Amount on the Certificates then entitled to distributions of
principal on such Distribution Date) is equal to or greater than 10.00%.
"Group III Trigger Event": A Group III Trigger Event is in
effect with respect to any Distribution Date on or after the Group III Stepdown
Date if:
(a) the Group III Delinquency Percentage exceeds 40.00% of the
then current Group III Credit Enhancement Percentage for the prior Distribution
Date or
(b) the aggregate amount of Realized Losses on the Group III
Mortgage Loans incurred since the Cut-off Date through the last day of the
related Due Period (reduced by the aggregate amount of Subsequent Recoveries
received on the Group III Mortgage Loans since the Cut-off Date through the last
day of the related Due Period) divided by the sum of the aggregate Stated
Principal Balance of the Group III Mortgage Loans as of the Cut-off Date, the
Group III-A Initial Deposit and the Group III-B Initial Deposit exceeds the
applicable percentages set forth below with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
August 2007 through July 2008 2.75%
August 2008 through July 2009 4.50%
August 2009 through July 2010 5.75%
August 2010 through July 2011 6.00%
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"Guaranteed Certificates": The Group I Class A Certificates.
"Guaranteed Interest Distribution Amount": With respect to any
Distribution Date and the Guaranteed Certificates, the amount, if any, after
giving effect to the distributions of the Group I Interest Remittance Amount,
the Group II Interest Remittance Amount, the Group III-A Interest Remittance
Amount and the Group III-B Interest Remittance Amount on such Distribution Date,
by which the (i) the Senior Interest Distribution Amount payable on the
Guaranteed Certificates for such Distribution Date exceeds (ii) the amount of
interest actually distributed (without giving effect to any Guarantor Payment)
to the Holders of the related Classes of Guaranteed Certificates on such
Distribution Date.
"Guaranteed Principal Distribution Amount": With respect to
(a) any Distribution Date other than the Distribution Date in August 2034, the
amount, if any, by which (i) the aggregate Certificate Principal Balance of the
Guaranteed Certificates (after giving effect to all amounts distributable and
allocable to principal on the Guaranteed Certificates but prior to giving effect
to any Guarantor Payment on such Distribution Date) exceeds (ii) the aggregate
Stated Principal Balance of the Group I Mortgage Loans (after giving effect to
the principal portion of Monthly Payments due during the related Due Period, to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) and (b) the Distribution Date in
August 2034, the amount equal to the aggregate Certificate Principal Balance of
the Guaranteed Certificates (after giving effect to all amounts distributable
and allocable to principal on the Guaranteed Certificates, including any Insured
Amount, but prior to giving effect to any Guarantor Payment on such Distribution
Date).
"Guarantor": Xxxxxx Xxx, or its successor in interest.
"Guarantor Deficiency Amount": With respect to any
Distribution Date, the sum of (i) the Guaranteed Interest Distribution Amount
and (ii) the Guaranteed Principal Distribution Amount.
"Guarantor Interest Reimbursement Amount": With respect to any
Distribution Date, (i) the sum of any accrued but unpaid Guaranty Fees, not
including the Guaranty Fee due on such Distribution Date, and (ii) the sum of
all amounts paid by the Guarantor in respect of the Guaranteed Interest
Distribution Amounts on all prior Distribution Dates to the extent not
previously reimbursed.
"Guarantor Payment": Any payment made by the Guarantor in
respect of a Guaranteed Interest Distribution Amount or a Guaranteed Principal
Distribution Amount.
"Guarantor Principal Reimbursement Amount": With respect to
any Distribution Date, the sum of all amounts paid by the Guarantor in respect
of Guaranteed Principal Distribution Amounts on all prior Distribution Dates to
the extent not previously reimbursed.
"Guarantor Reimbursement Amount": With respect to any
Distribution Date, the sum of Guarantor Interest Reimbursement Amount and the
Guarantor Principal Reimbursement Amount.
"Guaranty": The obligations of the Guarantor pursuant to
Section 4.09.
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"Guaranty Fee": With respect to any Distribution Date and with
respect to the Guaranteed Certificates, the fee payable to the Guarantor in
respect of its services as Guarantor that accrues at the applicable Guaranty Fee
Rate for such Guaranteed Certificates on a balance equal to the aggregate
Certificate Principal Balance of the Guaranteed Certificates immediately prior
to such Distribution Date computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Guaranty Fee Rate": The per annum rate set forth in a side
letter of the Guarantor, addressed to the Trustee and the Seller.
"Highest Priority": As of any date of determination, the Class
of Mezzanine Certificates then outstanding with a Certificate Principal Balance
greater than zero, with the highest priority for payments pursuant to Section
4.01, in the following order of decreasing priority: (i) with respect to
Subsequent Recoveries received on the Group I Mortgage Loans: Class M-I-1, Class
M-I-2 and Class B-I, (ii) with respect to Subsequent Recoveries received on the
Group II Mortgage Loans: Class M-II and Class B-II and (iii) with respect to
Subsequent Recoveries received on the Group III Mortgage Loans: Class M-III and
Class B-III.
"Indemnification Agreement": The Indemnification Agreement,
dated August 2, 2004, between the Certificate Insurer and Bear, Xxxxxxx & Co.
Inc.
"Indenture": An indenture relating to the issuance of notes
backed by all or a portion of the Class CE Certificates, the Class P
Certificates and/or the Residual Certificates.
"Independent": When used with respect to any specified Person,
any such Person who (a) is in fact independent of the Depositor, each Servicer
and their respective Affiliates, (b) does not have any direct financial interest
in or any material indirect financial interest in the Depositor, either Servicer
or any Affiliate thereof, and (c) is not connected with the Depositor, either
Servicer 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, either Servicer or any Affiliate thereof merely because such Person
is the beneficial owner of 1% or less of any class of securities issued by the
Depositor, either Servicer or any Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person (other than
the Servicers) that would be an "independent contractor" with respect to REMIC
I-A, REMIC I-B or REMIC I-C within the meaning of Section 856(d)(3) of the Code
if REMIC I-A, REMIC I-B or REMIC I-C were a real estate investment trust (except
that the ownership tests set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates), so long as REMIC I-A, REMIC I-B or REMIC I-C does not receive or
derive any income from such Person and provided that the relationship between
such Person and REMIC I-A, REMIC I-B or REMIC I-C is at arm's length, all within
the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other
Person (including the Servicers) if the Trustee, the Guarantor and the
Certificate Insurer has received an Opinion of Counsel to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent
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Contractor will not cause such REO Property to cease to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a) of
the Code), or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Index": With respect to each Group III Mortgage Loan and each
related Adjustment Date, the average of the interbank offered rates for
six-month or one-month United States dollar deposits in the London market as
published in THE WALL STREET JOURNAL and as most recently available either (i)
as of the first business day 45 days prior to such Adjustment Date or (ii) as of
the first business day of the month preceding the month of such Adjustment Date,
as specified in the related Mortgage Note.
"Information Circular": The Information Circular of the
Depositor dated August 2, 2004, relating to the Guaranteed Certificates.
"Initial Deposit": The sum of (i) the Group I Initial Deposit,
(ii) the Group III-A Initial Deposit and (iii) the Group III-B Initial Deposit.
"Insurance Account": The account or accounts created and
maintained pursuant to Section 4.08, which shall be entitled "Deutsche Bank
National Trust Company, as Trustee, in trust for the registered holders of New
Century Home Equity Loan Trust, Series 2004-A, Asset Backed Pass-Through
Certificates." The Insurance Account must be an Eligible Account.
"Insurance Agreement": The Insurance and Indemnity Agreement,
dated as of July 4, 2004, among the Certificate Insurer, the Trustee, the Trust,
the Seller and the Depositor.
"Insurance Proceeds": Proceeds of any title policy, hazard
policy or other insurance policy covering a Mortgage Loan to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with the procedures that the
related Servicer would follow in servicing mortgage loans held for its own
account, subject to the terms and conditions of the related Mortgage Note and
Mortgage.
"Insured Amount": The sum of (i) for any Distribution Date
(including the Distribution Date occurring on the Final Stated Maturity Date)
the excess, if any, of the Senior Interest Distribution Amount allocable to the
Insured Certificates on such Distribution Date, over the Available Distribution
Amount available on such Distribution Date to pay the Insured Certificates in
accordance with Section 4.01, (ii) for any Distribution Date prior to the Final
Stated Maturity Date, the Insured Certificate Principal Parity Amount, if any,
for such Distribution Date, (iii) for the Distribution Date occurring on the
Final Stated Maturity Date, or earlier termination of the Trust pursuant to
Article IX of this Agreement, the aggregate Certificate Principal Balance of the
Insured Certificates (after giving effect to all distributions to be made
thereon on such Distribution Date other than pursuant to the Policy), and (iv)
any Preference Amount to be paid pursuant to the Policy on such Distribution
Date.
"Insured Certificate Principal Parity Amount": With respect to
any Distribution Date, the
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excess of (i) the aggregate Certificate Principal Balance of the Insured
Certificates and the Group I Class A Certificates after giving effect to
distributions of principal to be made on such Distribution Date (without regard
to any payments of principal under the Policy) over (ii) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date.
"Insured Certificates": The Class M-I-1 Certificates, the
Group II Class A Certificates and the Group III Class A Certificates.
"Interest Accrual Period": With respect to any Distribution
Date and the Floating Rate Certificates, the period commencing on the
Distribution Date of the month immediately preceding the month in which such
Distribution Date occurs (or, in the case of the first Distribution Date,
commencing on the Closing Date) and ending on the day preceding such
Distribution Date. With respect to any Distribution Date and the Fixed Rate
Certificates, the Class CE Certificates and the REMIC I Regular Interests, the
one-month period ending on the last day of the calendar month preceding the
month in which such Distribution Date occurs.
"Interest Carry Forward Amount": With respect to any
Distribution Date and the Class A Certificates and the Mezzanine Certificates,
the sum of (i) the amount, if any, by which (a) the Interest Distribution Amount
for such Class of Certificates as of the immediately preceding Distribution Date
exceeded (b) the actual amount distributed on such Class of Certificates in
respect of interest on such immediately preceding Distribution Date, (ii) the
amount of any Interest Carry Forward Amount for such Class of Certificates
remaining unpaid from the previous Distribution Date and (iii) accrued interest
on the sum of (i) and (ii) above calculated at the related Pass-Through Rate for
the most recently ended Interest Accrual Period.
"Interest Determination Date": With respect to the Floating
Rate Certificates, REMIC II Regular Interest II-LTAI1, REMIC II Regular Interest
II-LTAII1, REMIC II Regular Interest II-LTAIII1, REMIC II Regular Interest
II-LTAIII2, REMIC II Regular Interest II-LTAIII3, REMIC II Regular Interest
II-LTM3 and REMIC II Regular Interest II-LTB3, and any Interest Accrual Period
therefor, the second London Business Day preceding the commencement of such
Interest Accrual Period.
"Interest Distribution Amount": With respect to any
Distribution Date and any class of Class A Certificates, any Mezzanine
Certificates and any Class CE Certificates, the aggregate Accrued Certificate
Interest on the Certificates of such Class for such Distribution Date.
"Late Collections": With respect to any Mortgage Loan and any
Due Period, all amounts received subsequent to the Determination Date
immediately following such Due Period, whether as late payments of Monthly
Payments or as Insurance Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously recovered.
"Late Payment Rate": The lesser of (a) the greater of (i) the
per annum rate of interest
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publicly announced from time to time by Citibank, N.A. as its prime or base
lending rate (any change in such rate of interest to be effective on the date
such change is announced by Citibank, N.A.), and (ii) the then applicable
highest rate of interest on the Insured Certificates and (b) the maximum rate
permissible under applicable usury or similar laws limiting interest rates as
determined by the Certificate Insurer. The Late Payment Rate shall be computed
on the basis of the actual number of days elapsed over a year consisting of 360
days.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such Mortgage
Loan is removed from REMIC I-A, REMIC I-B or REMIC I-C by reason of its being
purchased, sold or replaced pursuant to or as contemplated by Section 2.03,
Section 3.16(c) or Section 9.01. With respect to any REO Property, either of the
following events: (i) a Final Recovery Determination is made as to such REO
Property; or (ii) such REO Property is removed from REMIC I-A, REMIC I-B or
REMIC I-C by reason of its being purchased pursuant to Section 9.01.
"Liquidation Proceeds": The amount (other than Insurance
Proceeds or amounts received in respect of the rental of any REO Property prior
to REO Disposition) received by the related Servicer in connection with (i) the
taking of all or a part of a Mortgaged Property by exercise of the power of
eminent domain or condemnation, (ii) the liquidation of a defaulted Mortgage
Loan through a trustee's sale, foreclosure sale or otherwise, or (iii) the
repurchase, substitution or sale of a Mortgage Loan or an REO Property pursuant
to or as contemplated by Section 2.03, Section 3.16(c), Section 3.23 or Section
9.01.
"Loan Group": Loan Group I, Loan Group I, Loan Group II, Loan
Group III-A or Loan Group III-B, as the context requires.
"Loan Group I": The group of Mortgage Loans identified in the
Mortgage Loan Schedule as having been assigned to Loan Group I.
"Loan Group I": The group of Mortgage Loans identified in the
Mortgage Loan Schedule as having been assigned to Loan Group I.
"Loan Group III-A": The group of Mortgage Loans identified in
the Mortgage Loan Schedule as having been assigned to Loan Group III-A.
"Loan Group III-B": The group of Mortgage Loans identified in
the Mortgage Loan Schedule as having been assigned to Loan Group III-B.
"Loan-to-Value Ratio": As of any date of determination, the
fraction, expressed as a percentage, the numerator of which is the principal
balance of the related Mortgage Loan at such date and the denominator of which
is the Value of the related Mortgaged Property.
"Lockout Certificate Percentage": With respect to (i) the
Class A-I-9 Certificates and any Distribution Date, the percentage equal to the
Certificate Principal Balance of the Class A-I-9 Certificates
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immediately prior to such Distribution Date divided by the aggregate Certificate
Principal Balance of the Group I Class A Certificates immediately prior to such
Distribution Date and (ii) the Class A-II-9 Certificates and any Distribution
Date, the percentage equal to the Certificate Principal Balance of the Class
A-II-9 Certificates immediately prior to such Distribution Date divided by the
aggregate Certificate Principal Balance of the Group II Class A Certificates
immediately prior to such Distribution Date.
"Lockout Distribution Percentage": With respect to the Class
A-I-9 Certificates and the Class A-II-9 Certificates and any Distribution Date,
the indicated percentage of the Lockout Certificate Percentage for such
Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
August 2004 through July 2007 0%
August 2007 through July 2009 45%
August 2009 through July 2010 80%
August 2010 through July 2011 100%
August 2011 and thereafter 300%
"London Business Day": Any day on which banks in the City of
London and New York are open and conducting transactions in United States
dollars.
"Maximum Cap Rate": For any Distribution Date with respect to
the Group III Class A Certificates and the Group III Mezzanine Certificates, a
per annum rate equal to the product of (x) the weighted average of the Expense
Adjusted Maximum Mortgage Rates of the Group III 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 less the rate at which
the premium payable to the Certificate Insurer is calculated multiplied by a
fraction the numerator of which is the aggregate Certificate Principal Balance
of the Group III Class A Certificates immediately prior to such Distribution
Date and the denominator of which is the aggregate Stated Principal Balance of
the Group III Mortgage Loans as of the first day of the month preceding the
month of such Distribution Date and (y) a fraction, the numerator of which is 30
and the denominator of which is the actual number of days elapsed in the related
Interest Accrual Period.
"Maximum II-LTZZ1 Uncertificated Interest Deferral Amount":
With respect to any Distribution Date, the excess of (i) accrued interest at the
REMIC II Remittance Rate applicable to REMIC II Regular Interest II-LTZZ1 for
such Distribution Date on a balance equal to the Uncertificated Balance of REMIC
II Regular Interest II-LTZZ1 minus the REMIC II Group I Overcollateralized
Amount, in each case for such Distribution Date, over (ii) Uncertificated
Interest on REMIC II Regular Interest II-LTAI1, REMIC II Regular Interest
II-LTAI2, REMIC II Regular Interest II-LTAI3, REMIC II Regular Interest
II-LTAI4, REMIC II Regular Interest II-LTAI5, REMIC II Regular Interest
II-LTAI6, REMIC II Regular Interest II-LTAI7, REMIC II Regular Interest
II-LTAI8, REMIC II Regular Interest II-LTAI9, REMIC II Regular Interest
II-LTMI1, REMIC II Regular Interest II-LTMI2 and REMIC II Regular Interest II-
LTB1 for such Distribution Date, with the rate on each such REMIC II Regular
Interest subject to a cap equal to the Pass-Through Rate for the Corresponding
Certificate; provided, however, that for this purpose, calculations of the REMIC
II Remittance Rate and the related cap with respect to REMIC II
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Regular Interest II-LTAI1 shall be multiplied by a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days elapsed in
the related Accrual Period.
"Maximum II-LTZZ2 Uncertificated Interest Deferral Amount":
With respect to any Distribution Date, the excess of (i) accrued interest at the
REMIC II Remittance Rate applicable to REMIC II Regular Interest II-LTZZ2 for
such Distribution Date on a balance equal to the Uncertificated Balance of REMIC
II Regular Interest II-LTZZ2 minus the REMIC II Group II Overcollateralized
Amount, in each case for such Distribution Date, over (ii) Uncertificated
Interest on REMIC II Regular Interest II-LTAII1, REMIC II Regular Interest
II-LTAII2, REMIC II Regular Interest II-LTAII3, REMIC II Regular Interest
II-LTAII4, REMIC II Regular Interest II-LTAII5, REMIC II Regular Interest
II-LTAII6, REMIC II Regular Interest II-LTAII7, REMIC II Regular Interest
II-LTAII8, REMIC II Regular Interest II-LTAII9, REMIC II Regular Interest
II-LTM2 and REMIC II Regular Interest II-LTB2 for such Distribution Date, with
the rate on each such REMIC II Regular Interest subject to a cap equal to the
Pass-Through Rate for the Corresponding Certificate; provided, however, that for
this purpose, calculations of the REMIC II Remittance Rate and the related cap
with respect to REMIC II Regular Interest II-LTAII1 shall be multiplied by a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days elapsed in the related Accrual Period.
"Maximum II-LTZZ3 Uncertificated Interest Deferral Amount":
With respect to any Distribution Date, the excess of (i) accrued interest at the
REMIC II Remittance Rate applicable to REMIC II Regular Interest II-LTZZ3 for
such Distribution Date on a balance equal to the Uncertificated Balance of REMIC
II Regular Interest II-LTZZ3 minus the REMIC II Group III Overcollateralized
Amount, in each case for such Distribution Date, over (ii) Uncertificated
Interest on REMIC II Regular Interest II- LTAIII1, REMIC II Regular Interest
II-LTAIII2, REMIC II Regular Interest II-LTAIII3, REMIC II Regular Interest
II-LTM3 and REMIC II Regular Interest II-LTB3 for such Distribution Date, with
the rate on each such REMIC II Regular Interest subject to a cap equal to the
Pass-Through Rate for the Corresponding Certificate; provided, however, that for
this purpose, calculations of the REMIC II Remittance Rate and the related caps
with respect to each such REMIC II Regular Interest shall be multiplied by a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days elapsed in the related Accrual Period.
"Maximum Mortgage Rate": With respect to each Group III
Mortgage Loan, the percentage set forth in the related Mortgage Note as the
maximum Mortgage Rate thereunder.
"Mezzanine Certificate": Any Class M Certificate or Class B
Certificate.
"Minimum Mortgage Rate": With respect to each Group III
Mortgage Loan, the percentage set forth in the related Mortgage Note as the
minimum Mortgage Rate thereunder.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and interest on such Mortgage Loan which
is payable by the related Mortgagor from time to time under the related Mortgage
Note, determined: (a) after giving effect to (i) any Deficient Valuation and/or
Debt Service Reduction with respect to such Mortgage Loan and (ii) any reduction
in the amount
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of interest collectible from the related Mortgagor pursuant to the Relief Act;
(b) without giving effect to any extension granted or agreed to by the related
Servicer pursuant to Section 3.07 and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when due.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first or second lien on, or first or second priority security
interest in, a Mortgaged Property securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned
to the Trustee and delivered to the Trustee pursuant to Section 2.01 or Section
2.03(b) of this Agreement, as held from time to time as a part of the Trust
Fund, the Mortgage Loans so held being identified in the Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The agreement between the
Seller and the Depositor, regarding the sale of the Mortgage Loans by the Seller
to the Depositor, substantially in the form of Exhibit D annexed hereto.
"Mortgage Loan Schedule": As of any date, the list of Mortgage
Loans included in REMIC I-A, REMIC I-B and REMIC I-C on such date, separately
identifying the Group I Mortgage Loans, the Group II Mortgage Loans, the Group
III-A Mortgage Loans and the Group III-B Mortgage Loans, attached hereto as
Schedule 1. The Mortgage Loan Schedule shall set forth the following information
with respect to each Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) [reserved];
(iii) the state and zip code of the Mortgaged Property;
(iv) a code indicating whether the Mortgaged Property is
owner-occupied;
(v) the type of Residential Dwelling constituting the
Mortgaged Property;
(vi) the original months to maturity;
(vii) the stated remaining months to maturity from the
Cut-off Date based on the original amortization
schedule;
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(viii) the Loan-to-Value Ratio at origination;
(ix) the Mortgage Rate in effect immediately following the
Cut-off Date;
(x) (A) the date on which the first Monthly Payment was due on
the Mortgage Loan and (B) if such date is not consistent with the Due
Date currently in effect, such Due Date;
(xi) the stated maturity date;
(xii) the amount of the Monthly Payment at origination;
(xiii) the amount of the Monthly Payment due on the first Due
Date after the Cut-off Date;
(xiv) the last Due Date on which a Monthly Payment was
actually applied to the unpaid Stated Principal Balance;
(xv) the original principal amount of the Mortgage Loan;
(xvi) the Stated Principal Balance of the Mortgage Loan as of
the close of business on the Cut-off Date;
(xvii) with respect to each Group III Mortgage Loan, the
Adjustment Dates, the Gross Margin, the Maximum Mortgage Rate, the
Minimum Mortgage Rate, the Periodic Rate Cap and the maximum first
Adjustment Date Mortgage Rate adjustment, the first Adjustment Date
immediately following the origination date and the rounding code (i.e.,
nearest 0.125%, next highest 0.125%);
(xviii) a code indicating the purpose of the Mortgage Loan
(i.e., purchase financing, Rate/Term Refinancing, Cash-Out
Refinancing);
(xix) the Mortgage Rate at origination;
(xx) a code indicating the documentation program (i.e., Full
Documentation, Limited Documentation, Stated Income Documentation);
(xxi) the risk grade;
(xxii) the Value of the Mortgaged Property;
(xxiii) the sale price of the Mortgaged Property, if
applicable;
(xxiv) the actual unpaid principal balance of the Mortgage
Loan as of the Cut-off Date;
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(xxv) the type and term of the related Prepayment Charge;
(xxvi) the program code; and
(xxviii) the total amount of points and fees charged such
Mortgage Loan.
The Mortgage Loan Schedule shall set forth the following
information with respect to the Mortgage Loans in the aggregate as of the
Cut-off Date: (1) the number of Mortgage Loans; (2) the current Stated Principal
Balance of the Mortgage Loans; (3) the weighted average Mortgage Rate of the
Mortgage Loans and (4) the weighted average maturity of the Mortgage Loans. The
Mortgage Loan Schedule shall be amended from time to time by the Depositor in
accordance with the provisions of this Agreement. With respect to any Qualified
Substitute Mortgage Loan, the Cut-off Date shall refer to the related Cut-off
Date for such Mortgage Loan, determined in accordance with the definition of
Cut-off Date herein.
"Mortgage Note": The original executed note or other evidence
of the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on
Schedule 1 and existing from time to time thereafter, and any REO Properties
acquired in respect thereof.
"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, which rate (i) with
respect to each Group I Mortgage Loan and Group II Mortgage Loan shall remain
constant at the rate set forth in the Mortgage Loan Schedule as the Mortgage
Rate in effect immediately following the Cut-off Date and (ii) with respect to
the Group III Mortgage Loans, (A) as of any date of determination until the
first Adjustment Date following the Cut-off Date shall be the rate set forth in
the Mortgage Loan Schedule as the Mortgage Rate in effect immediately following
the Cut-off Date and (B) as of any date of determination thereafter shall be the
rate as adjusted on the most recent Adjustment Date equal to the sum, rounded as
provided in the Mortgage Note, of the Index, as most recently available as of a
date prior to the Adjustment Date as set forth in the related Mortgage Note,
plus the related Gross Margin; provided that the Mortgage Rate on such Group III
Mortgage Loan on any Adjustment Date shall never be more than the lesser of (i)
the sum of the Mortgage Rate in effect immediately prior to the Adjustment Date
plus the related Periodic Rate Cap, if any, and (ii) the related Maximum
Mortgage Rate, and shall never be less than the greater of (i) the Mortgage Rate
in effect immediately prior to the Adjustment Date less the Periodic Rate Cap,
if any, and (ii) the related Minimum Mortgage Rate. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination, the
annual rate determined in accordance with the immediately preceding sentence as
of the date such Mortgage Loan became an REO Property.
"Mortgaged Property": The underlying property securing a
Mortgage Loan, including any REO Property, consisting of an Estate in Real
Property improved by a Residential Dwelling.
"Mortgagor": The obligor on a Mortgage Note.
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"Net Mortgage Rate": With respect to any Mortgage Loan (or the
related REO Property) as of any date of determination, a per annum rate of
interest equal to the then applicable Mortgage Rate for such Mortgage Loan minus
the Servicing Fee Rate.
"Net Prepayment Interest Shortfall": With respect to any
Distribution Date, the excess, if any, of any Prepayment Interest Shortfalls for
such Distribution Date over the Compensating Interest paid by the related
Servicer.
"Net WAC Pass-Through Rate": For the first Distribution Date
with respect to the Class A-I-1 Certificates, a per annum rate equal to the
product of (x) (1) the weighted average of the Expense Adjusted Mortgage Rates
of the Group I 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 and (2) the product of (a) 5.93303% and (b) the Group I
Initial Deposit, less the Guaranty Fee Rate multiplied by a fraction the
numerator of which is the aggregate Certificate Principal Balance of the Group I
Class A Certificates immediately prior to such Distribution Date and the
denominator of which is the outstanding Stated Principal Balance of the Group I
Mortgage Loans as of the first day of the month preceding the month of such
Distribution Date and (y) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days elapsed in the related
Interest Accrual Period. For each Distribution Date following the first
Distribution Date with respect to the Class A-I-1 Certificates, a per annum rate
equal to the product of (x) the weighted average of the Expense Adjusted
Mortgage Rates of the Group I 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 less the Guaranty Fee Rate multiplied by a
fraction the numerator of which is the aggregate Certificate Principal Balance
of the Group I Class A Certificates immediately prior to such Distribution Date
and the denominator of which is the outstanding Stated Principal Balance of the
Group I Mortgage Loans as of the first day of the month preceding the month of
such Distribution Date and (y) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days elapsed in the related
Interest Accrual Period. For federal income tax purposes, the equivalent of the
foregoing shall be expressed as the weighted average of the REMIC II Remittance
Rate on REMIC II Regular Interest II-LTAI1, less the Guaranty Fee Rate
multiplied by a fraction the numerator of which is the aggregate Certificate
Principal Balance of the Group I Class A Certificates immediately prior to such
Distribution Date and the denominator of which is the outstanding Stated
Principal Balance of the Group I Mortgage Loans as of the first day of the month
preceding the month of such Distribution Date and (y) a fraction, the numerator
of which is 30 and the denominator of which is the actual number of days elapsed
in the related Interest Accrual Period, weighted on the basis of the
Uncertificated Balance of such REMIC II Regular Interest.
For the first Distribution Date with respect to the Group I
Class A Certificates (other than the Class A-I-1 Certificates), a per annum rate
equal to (1) the weighted average of the Expense Adjusted Mortgage Rates of the
Group I 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 and (2) the product of (a) 5.93303% and (b) the Group I
Initial Deposit, less the Guaranty Fee Rate multiplied by a fraction the
numerator of which is the aggregate Certificate Principal Balance of the Group I
Class A Certificates immediately prior to such Distribution Date and the
denominator of which is the outstanding
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Stated Principal Balance of the Group I Mortgage Loans as of the first day of
the month preceding the month of such Distribution Date. For each Distribution
Date following the first Distribution Date with respect to the Group I Class A
Certificates (other than the Class A-I-1 Certificates), a per annum rate equal
to the weighted average of the Expense Adjusted Mortgage Rates of the Group I
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 less the Guaranty Fee Rate multiplied by a fraction the numerator of
which is the aggregate Certificate Principal Balance of the Group I Class A
Certificates immediately prior to such Distribution Date and the denominator of
which is the outstanding Stated Principal Balance of the Group I Mortgage Loans
as of the first day of the month preceding the month of such Distribution Date.
For federal income tax purposes, the equivalent of the foregoing shall be
expressed as the weighted average of the REMIC II Remittance Rate on REMIC II
Regular Interests II-LTAI1, II- LTAI2, II-LTAI3, II-LTAI4, II-LTAI5, II-LTAI6,
II-LTAI7, II-LTAI8 and II-LTAI9, less the Guaranty Fee Rate multiplied by a
fraction the numerator of which is the aggregate Certificate Principal Balance
of the Group I Class A Certificates immediately prior to such Distribution Date
and the denominator of which is the outstanding Stated Principal Balance of the
Group I Mortgage Loans as of the first day of the month preceding the month of
such Distribution Date, weighted on the basis of the Uncertificated Balance of
such REMIC II Regular Interests.
For the first Distribution Date with respect to the Group I
Mezzanine Certificates, a per annum rate equal to (1) the weighted average of
the Expense Adjusted Mortgage Rates of the Group I 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 and (2) the
product of (a) 5.93303% and (b) the Group I Initial Deposit, less the sum of (i)
the rate at which the premium payable to the Certificate Insurer is calculated
multiplied by a fraction the numerator of which is the aggregate Certificate
Principal Balance of the Class M-I-1 Certificates immediately prior to such
Distribution Date and the denominator of which is the outstanding Stated
Principal Balance of the Group I Mortgage Loans as of the first day of the month
preceding the month of such Distribution Date and (ii) the Guaranty Fee Rate
multiplied by a fraction the numerator of which is the aggregate Certificate
Principal Balance of the Group I Class A Certificates immediately prior to such
Distribution Date and the denominator of which is the outstanding Stated
Principal Balance of the Group I Mortgage Loans as of the first day of the month
preceding the month of such Distribution Date. For each Distribution Date
following the first Distribution Date with respect to the Group I Mezzanine
Certificates, a per annum rate equal to the weighted average of the Expense
Adjusted Mortgage Rates of the Group I 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 less the sum of (i) the rate at
which the premium payable to the Certificate Insurer is calculated multiplied by
a fraction the numerator of which is the aggregate Certificate Principal Balance
of the Class M-I-1 Certificates immediately prior to such Distribution Date and
the denominator of which is the outstanding Stated Principal Balance of the
Group I Mortgage Loans as of the first day of the month preceding the month of
such Distribution Date and (ii) the Guaranty Fee Rate multiplied by a fraction
the numerator of which is the aggregate Certificate Principal Balance of the
Group I Class A Certificates immediately prior to such Distribution Date and the
denominator of which is the outstanding Stated Principal Balance of the Group I
Mortgage Loans as of the first day of the month preceding the month of such
Distribution Date. For federal income tax purposes, the equivalent of the
foregoing shall be expressed as
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the weighted average of the REMIC II Remittance Rate on REMIC II Regular
Interests II-LTMI1, II- LTMI2 and II-LTBI, less the sum of (i) the rate at which
the premium payable to the Certificate Insurer is calculated multiplied by a
fraction the numerator of which is the aggregate Certificate Principal Balance
of the Class M-I-1 Certificates immediately prior to such Distribution Date and
the denominator of which is the outstanding Stated Principal Balance of the
Group I Mortgage Loans as of the first day of the month preceding the month of
such Distribution Date and (ii) the Guaranty Fee Rate multiplied by a fraction
the numerator of which is the aggregate Certificate Principal Balance of the
Group I Class A Certificates immediately prior to such Distribution Date and the
denominator of which is the outstanding Stated Principal Balance of the Group I
Mortgage Loans as of the first day of the month preceding the month of such
Distribution Date, weighted on the basis of the Uncertificated Balance of such
REMIC II Regular Interests.
For any Distribution Date with respect to the Class A-II-1
Certificates, a per annum rate equal to the product of (x) the weighted average
of the Expense Adjusted Mortgage Rates of the Group II 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 less the rate at
which the premium payable to the Certificate Insurer is calculated multiplied by
a fraction the numerator of which is the aggregate Certificate Principal Balance
of the Group II Class A Certificates immediately prior to such Distribution Date
and the denominator of which is the outstanding Stated Principal Balance of the
Group II Mortgage Loans as of the first day of the month preceding the month of
such Distribution Date and (y) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days elapsed in the related
Interest Accrual Period. For federal income tax purposes, the equivalent of the
foregoing shall be expressed as the weighted average of the REMIC II Remittance
Rate on REMIC II Regular Interest II-LTAII1, less the rate at which the premium
payable to the Certificate Insurer is calculated multiplied by a fraction the
numerator of which is the aggregate Certificate Principal Balance of the Group
II Class A Certificates immediately prior to such Distribution Date and the
denominator of which is the outstanding Stated Principal Balance of the Group II
Mortgage Loans as of the first day of the month preceding the month of such
Distribution Date and (y) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days elapsed in the related
Interest Accrual Period, weighted on the basis of the Uncertificated Balance of
such REMIC II Regular Interest.
For any Distribution Date with respect to the Group II Class A
Certificates (other than the Class A-II-1 Certificates) and the Group II
Mezzanine Certificates, a per annum rate equal to the weighted average of the
Expense Adjusted Mortgage Rates of the Group II 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 less the rate at which
the premium payable to the Certificate Insurer is calculated multiplied by a
fraction the numerator of which is the aggregate Certificate Principal Balance
of the Group II Class A Certificates immediately prior to such Distribution Date
and the denominator of which is the outstanding Stated Principal Balance of the
Group II Mortgage Loans as of the first day of the month preceding the month of
such Distribution Date. For federal income tax purposes, the equivalent of the
foregoing shall be expressed as the weighted average of the REMIC II Remittance
Rate on REMIC II Regular Interests II-LTAI1, II-LTAI2, II-LTAI3, II-LTAI4,
II-LTAI5, II-LTAI6, II-LTAI7, II-LTAI8, II-LTAI9, II-LTMII and II-LTBII, less
the rate at which the premium payable to the Certificate Insurer is calculated
multiplied by a fraction the numerator of which is the aggregate Certificate
Principal Balance
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of the Group II Class A Certificates immediately prior to such Distribution Date
and the denominator of which is the outstanding Stated Principal Balance of the
Group II Mortgage Loans as of the first day of the month preceding the month of
such Distribution Date, weighted on the basis of the Uncertificated Balance of
such REMIC II Regular Interests.
For the first Distribution Date with respect to the Group III
Class A Certificates and the Group III Mezzanine Certificates, a per annum rate
equal to the product of (x) (1) the weighted average of the Expense Adjusted
Mortgage Rates of the Group III 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 and (2) the product of (a) 6.69818% and
(b) the Group III Initial Deposit, less the rate at which the premium payable to
the Certificate Insurer is calculated multiplied by a fraction the numerator of
which is the aggregate Certificate Principal Balance of the Group III Class A
Certificates immediately prior to such Distribution Date and the denominator of
which is the outstanding Stated Principal Balance of the Group III Mortgage
Loans as of the first day of the month preceding the month of such Distribution
Date and (y) a fraction, the numerator of which is 30 and the denominator of
which is the actual number of days elapsed in the related Interest Accrual
Period. For each Distribution Date following the first Distribution Date with
respect to the Group III Class A Certificates and the Group III Mezzanine
Certificates, a per annum rate equal to the product of (x) the weighted average
of the Expense Adjusted Mortgage Rates of the Group III 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 less the rate at
which the premium payable to the Certificate Insurer is calculated multiplied by
a fraction the numerator of which is the aggregate Certificate Principal Balance
of the Group III Class A Certificates immediately prior to such Distribution
Date and the denominator of which is the outstanding Stated Principal Balance of
the Group III Mortgage Loans as of the first day of the month preceding the
month of such Distribution Date and (y) a fraction, the numerator of which is 30
and the denominator of which is the actual number of days elapsed in the related
Interest Accrual Period. For federal income tax purposes, the equivalent of the
foregoing shall be expressed as the weighted average of the REMIC II Remittance
Rate on REMIC II Regular Interests II-LTAIII1, II-LTAIII2, II-LTAIII3, II-LTMIII
and II-LTBIII, less the rate at which the premium payable to the Certificate
Insurer is calculated multiplied by a fraction the numerator of which is the
aggregate Certificate Principal Balance of the Group III Class A Certificates
immediately prior to such Distribution Date and the denominator of which is the
outstanding Stated Principal Balance of the Group III Mortgage Loans as of the
first day of the month preceding the month of such Distribution Date and (y) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days elapsed in the related Interest Accrual Period, weighted
on the basis of the Uncertificated Balance of such REMIC II Regular Interests.
"Net WAC Rate Carryover Reserve Account": The Group I Net WAC
Rate Carryover Reserve Account, the Group II Net WAC Rate Carryover Reserve
Account or the Group III Net WAC Rate Carryover Reserve Account.
"Net WAC Rate Carryover Amount": With respect to any Class of
Class A Certificates and any Class of Mezzanine Certificates and any
Distribution Date, the sum of (A) the positive excess of (i) the amount of
interest accrued on such Class of Certificates for such Distribution Date at the
related
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fixed rate or Formula Rate, as applicable, for such Distribution Date over (ii)
the amount of interest accrued on such Class of Certificates at the related Net
WAC Pass-Through Rate for such Distribution Date and (B) the related Net WAC
Rate Carryover Amount for the previous Distribution Date not previously
distributed, together with interest thereon at a rate equal to the related fixed
rate or Formula Rate, as applicable, for such Class of Certificates for such
Distribution Date.
"New Lease": Any lease of REO Property entered into on behalf
of REMIC I-A, REMIC I-B or REMIC I-C including any lease renewed or extended on
behalf of REMIC I-A or REMIC I-B, if REMIC I-A, REMIC I-B or REMIC I-C has the
right to renegotiate the terms of such lease.
"Nonrecoverable P&I Advance": Any P&I Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the related Servicer, will not or, in the
case of a proposed P&I Advance, would not be ultimately recoverable from related
Late Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage
Loan or REO Property as provided herein.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property that, in the good faith business judgment of the related Servicer, will
not or, in the case of a proposed Servicing Advance, would not be ultimately
recoverable from related Late Collections, Insurance Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
"Non-United States Person": Any Person other than a United
States Person.
"Notice of Claim": On the third Business Day preceding each
Distribution Date, the Trustee shall deliver to the Guarantor (by electronic
medium as specified in the next sentence) a statement identifying the Guaranty
Deficiency Amount with respect to a Distribution Date, separately identifying
the amounts attributable to principal and interest. The Trustee shall deliver
such statement on or before 12:00 noon (New York time) on such day via the
internet using the following domain name: xxxx_xxxxx@xxxxxxxxx.xxx.
"Notional Amount": With respect to (i) the Class CE-I
Certificates and any Distribution Date, the aggregate Uncertificated Balance of
REMIC II Regular Interest II-LTAA1, REMIC II Regular Interest II-LTAI1, REMIC II
Regular Interest II-LTAI2, REMIC II Regular Interest II-LTAI3, REMIC II Regular
Interest II-LTAI4, REMIC II Regular Interest II-LTAI5, REMIC II Regular Interest
II-LTAI6, REMIC II Regular Interest II-LTAI7, REMIC II Regular Interest
II-LTAI8, REMIC II Regular Interest II-LTAI9, REMIC II Regular Interest
II-LTMI1, REMIC II Regular Interest II-LTMI2, REMIC II Regular Interest II-LTB1
and REMIC II Regular Interest II-LTZZ1 for such Distribution Date and (ii) the
Class CE-II Certificates and any Distribution Date, the aggregate Uncertificated
Balance of REMIC II Regular Interest II-LTAA2, REMIC II Regular Interest
II-LTAII1, REMIC II Regular Interest II-LTAII2, REMIC II Regular Interest
II-LTAII3, REMIC II Regular Interest II-LTAII4, REMIC II Regular Interest
II-LTAII5, REMIC II Regular Interest II-LTAII6, REMIC II Regular Interest
II-LTAII7, REMIC II Regular Interest II-LTAII8, REMIC II Regular Interest
II-LTAII9, REMIC II Regular Interest II-LTM2,
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REMIC II Regular Interest II-LTB2 and REMIC II Regular Interest II-LTZZ2 for
such Distribution Date and (iii) the Class CE-III Certificates and any
Distribution Date, the aggregate Uncertificated Balance of REMIC II Regular
Interest II-LTAA3, REMIC II Regular Interest II-LTAIII1, REMIC II Regular
Interest II-LTAIII2, REMIC II Regular Interest II-LTAIII3, REMIC II Regular
Interest II-LTM3, REMIC II Regular Interest II-LTB3 and REMIC II Regular
Interest II-LTZZ3 for such Distribution Date.
"Officers' Certificate": A certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a vice president
(however denominated), and by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of either Servicer, the
Originator, the Seller or the Depositor, as applicable.
"One-Month LIBOR": With respect to the Floating Rate
Certificates and any Interest Accrual Period therefor, the rate determined by
the Trustee on the related Interest Determination Date on the basis of the
offered rate for one-month U.S. dollar deposits, as such rate appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on such Interest Determination
Date; provided that if such rate does not appear on Telerate Page 3750, the rate
for such date will be determined on the basis of the offered rates of the
Reference Banks for one-month U.S. dollar deposits, as of 11:00 a.m. (London
time) on such Interest Determination Date. In such event, the Trustee will
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If on such Interest Determination Date, two or more
Reference Banks provide such offered quotations, One-Month LIBOR for the related
Interest Accrual Period shall be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16%). If on
such Interest Determination Date, fewer than two Reference Banks provide such
offered quotations, One-Month LIBOR for the related Interest Accrual Period
shall be the higher of (i) LIBOR as determined on the previous Interest
Determination Date and (ii) the Reserve Interest Rate. Notwithstanding the
foregoing, if, under the priorities described above, LIBOR for an Interest
Determination Date would be based on LIBOR for the previous Interest
Determination Date for the third consecutive Interest Determination Date, the
Trustee, after consultation with the Depositor, the Certificate Insurer and the
Guarantor, shall select an alternative comparable index (over which the Trustee
has no control), used for determining one-month Eurodollar lending rates that is
calculated and published (or otherwise made available) by an independent party.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor or either Servicer,
acceptable to the Trustee and the Certificate Insurer, except that any opinion
of counsel relating to (a) the qualification of any Trust REMIC as a REMIC or
(b) compliance with the REMIC Provisions, must be an opinion of Independent
counsel.
"Original Mortgage Loan": Any of the Mortgage Loans included
in REMIC I-A (with respect to the Group I Mortgage Loans), REMIC I-B (with
respect to the Group II Mortgage Loans) or REMIC I-C (with respect to the Group
III Mortgage Loans) as of the Closing Date.
"Originator": New Century Mortgage Corporation, or its
successor in interest.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such
-46-
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
"Pass-Through Rate": With respect to the Floating Rate
Certificates and any Distribution Date, a rate per annum equal to the lesser of
(i) the related Formula Rate for such Distribution Date and (ii) the related Net
WAC Pass-Through Rate for such Distribution Date.
With respect to the Fixed Rate Certificates, the lesser of (i)
the fixed rate per annum set forth below and (ii) the related Net WAC
Pass-Through Rate for such Distribution Date:
Class Pass-Through Rate
----- -----------------
A-I-2 3.930% per annum
A-I-3 4.420% per annum
A-I-4 4.800% per annum
A-I-5 5.170% per annum
A-I-6 5.640% per annum
A-I-7 5.650% per annum
A-I-8 5.650% per annum
A-I-9 5.450% per annum
A-II-2 3.930% per annum
A-II-3 4.450% per annum
A-II-4 4.860% per annum
A-II-5 5.250% per annum
A-II-6 5.650% per annum
A-II-7 5.650% per annum
A-II-8 5.650% per annum
A-II-9 5.470% per annum
M-I-1 5.650% per annum
M-I-2 5.650% per annum
M-II 5.650% per annum
B-I 5.650% per annum
B-II 5.650% per annum
With respect to the Class CE-I Certificates and any
Distribution Date, a rate per annum equal to the percentage equivalent of a
fraction, the numerator of which is the sum of the amounts calculated pursuant
to clauses (A) through (O) below, and the denominator of which is the aggregate
Uncertificated Balance of REMIC II Regular Interest II-LTAA1, REMIC II Regular
Interest II-LTAI1, REMIC II Regular Interest II-LTAI2, REMIC II Regular Interest
II-LTAI3, REMIC II Regular Interest II-LTAI4, REMIC II Regular Interest
II-LTAI5, REMIC II Regular Interest II-LTAI6, REMIC II Regular Interest
II-LTAI7, REMIC II Regular Interest II-LTAI8, REMIC II Regular Interest
II-LTAI9, REMIC II Regular Interest II-LTMI1, REMIC II Regular Interest
II-LTMI2, REMIC II Regular Interest II-LTB1, REMIC II Regular Interest II-LTZZ1
and REMIC II Regular Interest II-LTP1. For purposes of calculating the
Pass-Through Rate for the Class CE-I Certificates, the numerator is equal to the
sum of the following components:
(A) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAA1 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II
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Regular Interest II-LTAA1;
(B) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAI1 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAI1;
(C) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAI2 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAI2;
(D) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAI3 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAI3;
(E) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAI4 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAI4;
(F) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAI5 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAI5;
(G) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAI6 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAI6;
(H) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAI7 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAI7;
(I) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAI8 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAI8;
(J) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAI9 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAI9;
(K) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTMI1 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTMI1;
(L) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTMI2 minus
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the Group I Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTMI2;
(M) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTB1 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTB1;
(N) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTZZ1 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTZZ1; and
(O) 100% of the interest on REMIC II Regular Interest II-LTP1.
With respect to the Class CE-II Certificates and any
Distribution Date, a rate per annum equal to the percentage equivalent of a
fraction, the numerator of which is the sum of the amounts calculated pursuant
to clauses (A) through (N) below, and the denominator of which is the aggregate
Uncertificated Balance of REMIC II Regular Interest II-LTAA2, REMIC II Regular
Interest II-LTAII1, REMIC II Regular Interest II-LTAII2, REMIC II Regular
Interest II-LTAII3, REMIC II Regular Interest II-LTAII4, REMIC II Regular
Interest II-LTAII5, REMIC II Regular Interest II-LTAII6, REMIC II Regular
Interest II-LTAII7, REMIC II Regular Interest II-LTAII8, REMIC II Regular
Interest II-LTAII9, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTB2, REMIC II Regular Interest II-LTZZ2 and REMIC II Regular Interest
II-LTP2. For purposes of calculating the Pass-Through Rate for the Class CE- II
Certificates, the numerator is equal to the sum of the following components:
(A) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAA2 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAA2;
(B) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAII1 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAII1;
(C) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAII2 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAII2;
(D) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAII3 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAII3;
(E) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAII4 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAII4;
-49-
(F) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAII5 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAII5;
(G) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAII6 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAII6;
(H) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAII7 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAII7;
(I) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAII8 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAII8;
(J) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAII9 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAII9;
(K) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTM2 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTM2;
(L) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTB2 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTB2;
(M) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTZZ2 minus the Group I Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTZZ2; and
(N) 100% of the interest on REMIC II Regular Interest II-LTP2.
With respect to the Class CE-III Certificates and any
Distribution Date, a rate per annum equal to the percentage equivalent of a
fraction, the numerator of which is the sum of the amounts calculated pursuant
to clauses (A) through (H) below, and the denominator of which is the aggregate
Uncertificated Balance of REMIC II Regular Interest II-LTAA3, REMIC II Regular
Interest II-LTAIII1, REMIC II Regular Interest II-LTAIII2, REMIC II Regular
Interest II-LTAIII3, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest II-LTB3, REMIC II Regular Interest II-LTZZ3 and REMIC II Regular
Interest II-LTP3. For purposes of calculating the Pass-Through Rate for the
Class CE-III Certificates, the numerator is equal to the sum of the following
components:
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(A) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAA3 minus the Group II Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTAA3;
(B) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAIII1 minus the Group II Marker Rate, applied to an amount equal
to the Uncertificated Balance of REMIC II Regular Interest II-LTAIII1;
(C) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAIII2 minus the Group II Marker Rate, applied to an amount equal
to the Uncertificated Balance of REMIC II Regular Interest II-LTAIII2;
(D) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAIII3 minus the Group II Marker Rate, applied to an amount equal
to the Uncertificated Balance of REMIC II Regular Interest II-LTAIII3;
(E) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTM3 minus the Group II Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTM3;
(F) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTB3 minus the Group II Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTB3;
(G) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTZZ3 minus the Group II Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC II Regular Interest II-LTZZ3; and
(H) 100% of the interest on REMIC II Regular Interest II-LTP3.
"Percentage Interest": With respect to any Class of
Certificates (other than the Residual Certificates), the undivided percentage
ownership in such Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the initial Certificate Principal Balance
or Notional Amount represented by such Certificate and the denominator of which
is the aggregate initial Certificate Principal Balance or Notional Amount of all
of the Certificates of such Class. The Class A Certificates and the Mezzanine
Certificates are issuable only in minimum Percentage Interests corresponding to
minimum initial Certificate Principal Balances of $25,000 and integral multiples
of $1.00 in excess thereof. The Class P Certificates are issuable only in
Percentage Interests corresponding to initial Certificate Principal Balances of
$20 and integral multiples thereof. The Class CE Certificates are issuable only
in minimum Percentage Interests corresponding to minimum initial Certificate
Principal Balances of $25,000 and integral multiples of $1.00 in excess thereof;
provided, however, that a single Certificate of each such Class of Certificates
may be issued having a Percentage Interest corresponding to the remainder of the
aggregate initial Certificate Principal Balance or Notional Amount of such Class
or to an otherwise authorized denomination
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for such Class plus such remainder. With respect to any Residual Certificate,
the undivided percentage ownership in such Class evidenced by such Certificate,
as set forth on the face of such Certificate. The Residual Certificates are
issuable in Percentage Interests of 20% and multiples thereof.
"Periodic Rate Cap": With respect to each Group III Mortgage
Loan and any Adjustment Date therefor, the fixed percentage set forth in the
related Mortgage Note, which is the maximum amount by which the Mortgage Rate
for such Mortgage Loan may increase or decrease (without regard to the Maximum
Mortgage Rate or the Minimum Mortgage Rate) on such Adjustment Date from the
Mortgage Rate in effect immediately prior to such Adjustment Date.
"Permitted Investments": Any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
regardless of whether issued by the Depositor, either Servicer, the Trustee or
any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of,
or bankers' acceptances issued by, any Depository Institution;
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the United
States of America or any state thereof and that are rated by each
Rating Agency that rates such securities in its highest long-term
unsecured rating categories at the time of such investment or
contractual commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than 30 days after the date of
acquisition thereof) that is rated by each Rating Agency that rates
such securities in its highest short-term unsecured debt rating
available at the time of such investment;
(vi) units of money market funds that have been rated "AAAm"
or "AAAm-G" by S&P; and
(viii) if previously confirmed in writing to the Trustee, any
other demand, money market or time deposit, or any other obligation,
security or investment, as may be acceptable to the Rating Agencies as
a permitted investment of funds backing securities having ratings
equivalent to its highest initial rating of the Class A Certificates;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only
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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 Transferee of a Residual
Certificate other than a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"P&I Advance": As to any Mortgage Loan or REO Property, any
advance made by the related Servicer in respect of any Distribution Date
pursuant to Section 4.03.
"Plan": Any employee benefit plan or certain other retirement
plans and arrangements, including individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that are subject to ERISA or Section 4975 of the Code.
"Policy": The Financial Guaranty Surety Bonds No. 04030024 and
No. 04030025, and all endorsements thereto, dated as of the Closing Date, issued
by the Certificate Insurer in respect of the Insured Certificates, a copy of
which is attached hereto as Exhibit B.
"Preference Amount": Any amounts covered by the Policy that
were distributed in respect of the Insured Certificates which are recovered from
any Holder of an Insured Certificate as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code or other similar law in
accordance with a final, nonappealable order of a court having competent
jurisdiction and which have not theretofore been repaid to such Holders.
"Prepayment Assumption": As set forth in the Prospectus
Supplement.
"Prepayment Charge": With respect to any Prepayment Period,
any prepayment premium, penalty or charge payable by a Mortgagor in connection
with any Principal Prepayment on a Mortgage Loan pursuant to the terms of the
related Mortgage Note (other than any Servicer Prepayment Charge Payment
Amount).
"Prepayment Charge Schedule": As of any date, the list of
Prepayment Charges on the Mortgage Loans included in REMIC I-A, REMIC I-B or
REMIC I-C on such date, attached hereto as Schedule 2 (including the Prepayment
Charge Summary attached thereto). The Prepayment Charge Schedule shall set forth
the following information with respect to each related Mortgage Loan:
(i) the Mortgage Loan identifying number;
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(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination of the related Mortgage
Loan;
(iv) the date on which the first monthly payment was due
on the related Mortgage Loan;
(v) the term of the related Mortgage Loan; and
(vi) the principal balance of the related Mortgage Loan as
of the Cut-off Date.
The Prepayment Charge Schedule shall be amended from time to
time by the Depositor in accordance with the provisions of this Agreement and
such amended Prepayment Charge Schedule shall be delivered by the Depositor to
the Certificate Insurer and the Guarantor.
"Prepayment Interest Shortfall": With respect to any
Distribution Date, for each Mortgage Loan that was during the related Prepayment
Period the subject of a Principal Prepayment in full or in part that was applied
by the Servicer to reduce the outstanding principal balance of such loan on a
date preceding the Due Date in the succeeding Prepayment Period, an amount equal
to one month's interest at the applicable Net Mortgage Rate less any payments
made by the Mortgagor. The obligations of the Servicer in respect of any
Prepayment Interest Shortfall are set forth in Section 3.24.
"Prepayment Period": With respect to any Distribution Date,
the calendar month preceding the calendar month in which such Distribution Date
occurs.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing the full
amount of scheduled interest due on any Due Date in any month or months
subsequent to the month of prepayment.
"Prospectus Supplement": That certain Prospectus Supplement
dated August 2, 2004 relating to the public offering of the Group II Class A
Certificates, the Group III Class A Certificates and the Mezzanine Certificates.
"Purchase Price": With respect to any Mortgage Loan or REO
Property to be purchased pursuant to or as contemplated by Section 2.03, Section
3.16(c), Section 3.16(e) or Section 9.01, and as confirmed by an Officers'
Certificate from the related Servicer to the Trustee, an amount equal to the sum
of (i) 100% of the Stated Principal Balance thereof as of the date of purchase
(or such other price as provided in Section 9.01), (ii) in the case of (x) a
Mortgage Loan, accrued interest on such Stated Principal Balance at the
applicable Mortgage Rate in effect from time to time from the Due Date as to
which interest was last covered by a payment by the Mortgagor or an advance by
the related Servicer, which payment or advance had as of the date of purchase
been distributed pursuant to Section 4.01, through the end of the calendar month
in which the purchase is to be effected and (y) an REO Property, the sum of (1)
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accrued interest on such Stated Principal Balance at the applicable Mortgage
Rate in effect from time to time from the Due Date as to which interest was last
covered by a payment by the Mortgagor or an advance by the related Servicer
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, plus (2) REO Imputed Interest for such
REO Property for each calendar month commencing with the calendar month in which
such REO Property was acquired and ending with the calendar month in which such
purchase is to be effected, net of the total of all net rental income, Insurance
Proceeds, Liquidation Proceeds and P&I Advances that as of the date of purchase
had been distributed as or to cover REO Imputed Interest pursuant to Section
4.01, (iii) any unreimbursed Servicing Advances and P&I Advances (including
Nonrecoverable P&I Advances and Nonrecoverable Servicing Advances) and any
unpaid Servicing Fees allocable to such Mortgage Loan or REO Property, (iv) any
amounts previously withdrawn from the related Collection Account in respect of
such Mortgage Loan or REO Property pursuant to Section 3.11(a)(ix) and Section
3.16(b), and (v) in the case of a Mortgage Loan required to be purchased
pursuant to Section 2.03, expenses reasonably incurred or to be incurred by the
related Servicer, the Certificate Insurer, the Guarantor or the Trustee in
respect of the breach or defect giving rise to the purchase obligation including
any costs and damages incurred by the Trust in connection with any violation by
such loan of any predatory or abusive lending law.
"Qualified Substitute Mortgage Loan": A mortgage loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement
which must, on the date of such substitution, (i) have an outstanding principal
balance, after application of all scheduled payments of principal and interest
due during or prior to the month of substitution, not in excess of the Stated
Principal Balance of the Deleted Mortgage Loan as of the Due Date in the
calendar month during which the substitution occurs, (ii) have a Mortgage Rate
not less than (and not more than one percentage point in excess of) the Mortgage
Rate of the Deleted Mortgage Loan, (iii) with respect to any Group III Mortgage
Loan, have a Maximum Mortgage Rate not less than the Maximum Mortgage Rate on
the Deleted Mortgage Loan, (iv) with respect to any Group III Mortgage Loan,
have a Minimum Mortgage Rate not less than the Minimum Mortgage Rate of the
Deleted Mortgage Loan, (v) with respect to any Group III Mortgage Loan, have a
Gross Margin equal to the Gross Margin of the Deleted Mortgage Loan, (vi) with
respect to any Group III Mortgage Loan, have a next Adjustment Date not more
than two months later than the next Adjustment Date on the Deleted Mortgage
Loan, (vii) have a remaining term to maturity not greater than (and not more
than one year less than) that of the Deleted Mortgage Loan, (viii) have the same
Due Date as the Due Date on the Deleted Mortgage Loan, (ix) have a Loan-to-Value
Ratio as of the date of substitution equal to or lower than the Loan-to-Value
Ratio of the Deleted Mortgage Loan as of such date, (x) have a risk grading
determined by the Originator at least equal to the risk grading assigned on the
Deleted Mortgage Loan, (xi) with respect to Qualified Substituted Mortgage Loans
substituted for Deleted Mortgage Loans that are Group I-A Mortgage Loans, have
an original principal balance that conforms to Xxxxxx Xxx loan limits as of the
date of its origination and be otherwise acceptable to the Guarantor and (xii)
conform to each representation and warranty set forth in Section 6 of the
Mortgage Loan Purchase Agreement applicable to the Deleted Mortgage Loan. In the
event that one or more mortgage loans are substituted for one or more Deleted
Mortgage Loans, the amounts described in clause (i) hereof shall be determined
on the basis of aggregate principal balances, the Mortgage Rates described in
clause (ii) hereof shall be determined on the basis of weighted average Mortgage
Rates, the terms described in clause (vii) hereof shall be determined on the
basis of weighted average remaining term to maturity, the Loan-to-Value Ratios
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described in clause (ix) hereof shall be satisfied as to each such mortgage
loan, the risk gradings described in clause (x) hereof shall be satisfied as to
each such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (xi) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be.
"Rate/Term Refinancing": A Refinanced Mortgage Loan, the
proceeds of which are not more than a nominal amount in excess of the existing
first mortgage loan and any subordinate mortgage loan on the related Mortgaged
Property and related closing costs, and were used exclusively (except for such
nominal amount) to satisfy the then existing first mortgage loan and any
subordinate mortgage loan of the Mortgagor on the related Mortgaged Property and
to pay related closing costs.
"Rating Agency or Rating Agencies": Xxxxx'x and S&P or their
successors. If such agencies or their successors are no longer in existence,
"Rating Agencies" shall be such nationally recognized statistical rating
agencies, or other comparable Persons, designated by the Depositor (and if
rating the Class A Certificates, consented to in writing by the Certificate
Insurer and if rating the Group I Class A Certificates, consented to in writing
by the Guarantor), notice of which designation shall be given to the Trustee and
the Servicers.
"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 unpaid 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, plus (iii) any
amounts previously withdrawn from the related Collection Account in respect of
such Mortgage Loan pursuant to Section 3.11(a)(ix) and Section 3.16(b), minus
(iv) 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 related Servicer with respect to such
Mortgage Loan pursuant to Section 3.11(a)(iii).
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
unpaid 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, plus (iii) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month in which such Final Recovery Determination was made, plus
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(iv) any amounts previously withdrawn from the related Collection Account in
respect of the related Mortgage Loan pursuant to Section 3.11(a)(ix) and Section
3.16(b), minus (v) the aggregate of all P&I Advances and Servicing Advances (in
the case of Servicing Advances, without duplication of amounts netted out of the
rental income, Insurance Proceeds and Liquidation Proceeds described in clause
(vi) below) made by the related Servicer in respect of such REO Property or the
related Mortgage Loan for which the related Servicer has been or, in connection
with such Final Recovery Determination, will be reimbursed pursuant to Section
3.23 out of rental income, Insurance Proceeds and Liquidation Proceeds received
in respect of such REO Property, minus (vi) the total of all net rental income,
Insurance Proceeds and Liquidation Proceeds received in respect of such REO
Property that has been, or in connection with such Final Recovery Determination,
will be transferred to the Distribution Account pursuant to Section 3.23.
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.
If either 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 recoveries are applied to
principal distributions on any Distribution Date.
"Record Date": With respect to each Distribution Date and any
Floating Rate Certificate, the Business Day immediately preceding such
Distribution Date. With respect to the 1st Distribution Date and any Fixed Rate
Certificate, or any other Certificates, including any Definitive Certificates,
the Closing Date and with respect to each other Distribution Date and any Fixed
Rate Certificate, or any other Certificates, including any Definitive
Certificates, the last Business Day of the month immediately preceding the month
in which such Distribution Date occurs.
"Reference Banks": Deutsche Bank AG, Xxxxxxx'x Bank PLC, The
Tokyo Mitsubishi Bank and National Westminster Bank PLC and their successors in
interest; provided, however, that if any of the foregoing banks are not suitable
to serve as a Reference Bank, then any leading banks selected by the Trustee,
after consultation with the Depositor and with the consent of the Certificate
Insurer and the Guarantor, which are engaged in transactions in Eurodollar
deposits in the international Eurocurrency market (i) with an established place
of business in London and (ii) not controlling, under the control of or under
common control with the Depositor or any Affiliate thereof.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of
which were not used to purchase the related Mortgaged Property.
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"Regular Certificate": Any Class A Certificate, Mezzanine
Certificate, Class CE Certificate or Class P Certificate.
"Regular Interest": A "regular interest" in a REMIC within the
meaning of Section 860G(a)(1) of the Code.
"Reimbursement Amount": As to any Distribution Date, the sum
of (x) (i) all Insured Amounts paid by the Certificate Insurer, but for which
the Certificate Insurer has not been reimbursed prior to such Distribution Date
pursuant to Section 4.01, plus (ii) interest accrued on such Insured Amounts not
previously repaid, calculated at the Late Payment Rate from the date the Trustee
received the related Insured Amounts or the date such Insured Amounts were made,
and (y) without duplication (i) any amounts then due and owing to the
Certificate Insurer under the Insurance Agreement, as certified to the Trustee
by the Certificate Insurer plus (ii) interest on such amounts at the Late
Payment Rate.
"Relief Act": The Servicemembers Civil Relief Act, or similar
state laws.
"Relief Act Interest Shortfall": With respect to any
Distribution Date and any Mortgage Loan, any reduction in the amount of interest
collectible on such Mortgage Loan for the most recently ended calendar month as
a result of the application of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
"REMIC I-A": 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) such
Group I Mortgage Loans and Prepayment Charges with respect to the Group I
Mortgage Loans as from time to time are subject to this Agreement, together with
the Mortgage Files relating thereto, and together with all collections thereon
and proceeds thereof; (ii) any REO Property relating to a Group I Mortgage Loan,
together with all collections thereon and proceeds thereof; (iii) the Trustee's
rights with respect to the Group I Mortgage Loans under all insurance policies
required to be maintained pursuant to this Agreement and any proceeds thereof;
(iv) the Depositor's rights with respect to the Group I Mortgage Loans under the
Mortgage Loan Purchase Agreement (including any security interest created
thereby); and (v) the related Collection Account (other than any amounts
representing any Servicer Prepayment Charge Payment Amount with respect to the
Group I Mortgage Loans), the Distribution Account (other than any amounts
representing any Servicer Prepayment Charge Payment Amount with respect to the
Group I Mortgage Loans) and any REO Account, and such assets that are deposited
therein from time to time with respect to the Group I Mortgage Loans and any
investments thereof, together with any and all income, proceeds and payments
with respect thereto. Notwithstanding the foregoing, however, REMIC I-A
specifically excludes the Group I Net WAC Rate Carryover Reserve Account, the
Class A-I-1 Cap Contract, all payments and other collections of principal and
interest due on the Group I Mortgage Loans on or before the Cut-off Date and all
Prepayment Charges with respect to the Group I Mortgage Loans payable in
connection with Principal Prepayments made before the Cut-off Date.
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"REMIC I-A Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC I-A issued hereunder
and designated as a "regular interest" in REMIC I-A. Each REMIC I-A Regular
Interest shall accrue interest at the related REMIC I-A Remittance 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 Balance as set forth in the Preliminary Statement hereto.
The designations for the respective REMIC I-A Regular Interests are set forth in
the Preliminary Statement hereto.
"REMIC I-A Remittance Rate": With respect to (a) the first
Distribution Date and (i) REMIC I-A Regular Interest IA-LT1 and REMIC I-A
Regular Interest IA-LTP, the weighted average of the Expense Adjusted Mortgage
Rates of the Group I Mortgage Loans and (ii) REMIC I-A Regular Interest I-LT2,
5.93303% and (b) any Distribution Date thereafter, the weighted average of the
Expense Adjusted Mortgage Rates of the Group I Mortgage Loans.
"REMIC I-B": 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) such
Group II Mortgage Loans and Prepayment Charges with respect to the Group II
Mortgage Loans as from time to time are subject to this Agreement, together with
the Mortgage Files relating thereto, and together with all collections thereon
and proceeds thereof; (ii) any REO Property relating to a Group II Mortgage
Loan, together with all collections thereon and proceeds thereof; (iii) the
Trustee's rights with respect to the Group II Mortgage Loans under all insurance
policies required to be maintained pursuant to this Agreement and any proceeds
thereof; (iv) the Depositor's rights with respect to the Group II Mortgage Loans
under the Mortgage Loan Purchase Agreement (including any security interest
created thereby); and (v) the related Collection Account (other than any amounts
representing any Servicer Prepayment Charge Payment Amount with respect to the
Group II Mortgage Loans), the Distribution Account (other than any amounts
representing any Servicer Prepayment Charge Payment Amount with respect to the
Group II Mortgage Loans) and any REO Account, and such assets that are deposited
therein from time to time with respect to the Group II Mortgage Loans and any
investments thereof, together with any and all income, proceeds and payments
with respect thereto. Notwithstanding the foregoing, however, REMIC I-A
specifically excludes the Group II Net WAC Rate Carryover Reserve Account, the
Class A-II-1 Cap Contract, all payments and other collections of principal and
interest due on the Group II Mortgage Loans on or before the Cut-off Date and
all Prepayment Charges with respect to the Group II Mortgage Loans payable in
connection with Principal Prepayments made before the Cut-off Date.
"REMIC I-B Regular Interest": Either of the separate
non-certificated beneficial ownership interests in REMIC I-B issued hereunder
and designated as a "regular interest" in REMIC I-B. Each REMIC I-B Regular
Interest shall accrue interest at the related REMIC I-B Remittance 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 Balance as set forth in the Preliminary Statement hereto.
The designations for the respective REMIC I-B Regular Interests are set forth in
the Preliminary Statement hereto.
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"REMIC I-B Remittance Rate": With respect to the REMIC I-B
Regular Interest IB-LT1 and REMIC I-B Regular Interest IB-LTP, the weighted
average of the Expense Adjusted Mortgage Rates of the Group II Mortgage Loans.
"REMIC I-C": 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) such
Group III Mortgage Loans and Prepayment Charges with respect to the Group III
Mortgage Loans as from time to time are subject to this Agreement, together with
the Mortgage Files relating thereto, and together with all collections thereon
and proceeds thereof; (ii) any REO Property relating to a Group III Mortgage
Loan, together with all collections thereon and proceeds thereof; (iii) the
Trustee's rights with respect to the Group III Mortgage Loans under all
insurance policies required to be maintained pursuant to this Agreement and any
proceeds thereof; (iv) the Depositor's rights with respect to the Group III
Mortgage Loans under the Mortgage Loan Purchase Agreement (including any
security interest created thereby); and (v) the related Collection Account
(other than any amounts representing any Servicer Prepayment Charge Payment
Amount with respect to the Group III Mortgage Loans), the Distribution Account
(other than any amounts representing any Servicer Prepayment Charge Payment
Amount with respect to the Group III Mortgage Loans) and any REO Account, and
such assets that are deposited therein from time to time with respect to the
Group III Mortgage Loans and any investments thereof, together with any and all
income, proceeds and payments with respect thereto. Notwithstanding the
foregoing, however, REMIC I-C specifically excludes the Group III Net WAC Rate
Carryover Reserve Account, the Class A-I-1 Cap Contract, the Class A-II-1 Cap
Contract, the Group III Cap Contract, all payments and other collections of
principal and interest due on the Group III Mortgage Loans on or before the
Cut-off Date and all Prepayment Charges with respect to the Group III Mortgage
Loans payable in connection with Principal Prepayments made before the Cut-off
Date.
"REMIC I-C Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC I-C issued hereunder
and designated as a "regular interest" in REMIC I-C. Each REMIC I-C Regular
Interest shall accrue interest at the related REMIC I-C Remittance 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 Balance as set forth in the Preliminary Statement hereto.
The designations for the respective REMIC I-C Regular Interests are set forth in
the Preliminary Statement hereto.
"REMIC I-C Remittance Rate": With respect to (a) the first
Distribution Date and (i) REMIC I-B Regular Interest IC-LT1 and REMIC I-C
Regular Interest IC-LTP, the weighted average of the Expense Adjusted Mortgage
Rates of the Group III Mortgage Loans and (ii) REMIC I-C Regular Interest I-LT2,
6.69819% and (b) any Distribution Date thereafter, the weighted average of the
Expense Adjusted Mortgage Rates of the Group III Mortgage Loans.
"REMIC II": The segregated pool of assets consisting of the
REMIC I-A Regular Interests, the REMIC I-B Regular Interests and the REMIC I-C
Regular Interests conveyed in trust to the Trustee for the benefit of the Class
R-II Interest pursuant to Section 2.08, and all amounts deposited therein, with
respect to which a separate REMIC election is to be made.
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"REMIC II Group 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 Group I Mortgage Loans and REO
Properties in Loan Group I then outstanding and (ii) the REMIC II Remittance
Rate for REMIC II Regular Interest II-LTAA1 minus the Group I Marker Rate,
divided by (b) 12.
"REMIC II Group I Overcollateralized Amount": With respect to
any date of determination, (i) 1.00% of the aggregate Uncertificated Balance of
REMIC II Regular Interest II-LTAA1, REMIC II Regular Interest II-LTAI1, REMIC II
Regular Interest II-LTAI2, REMIC II Regular Interest II-LTAI3, REMIC II Regular
Interest II-LTAI4, REMIC II Regular Interest II-LTAI5, REMIC II Regular Interest
II-LTAI6, REMIC II Regular Interest II-LTAI7, REMIC II Regular Interest
II-LTAI8, REMIC II Regular Interest II-LTAI9, REMIC II Regular Interest
II-LTMI1, REMIC II Regular Interest II-LTMI2, REMIC II Regular Interest II-LTB1,
REMIC II Regular Interest II-LTZZ1 and REMIC II Regular Interest II-LTP1 minus
(ii) the aggregate Uncertificated Balance of REMIC II Regular Interest II-LTAI1,
REMIC II Regular Interest II-LTAI2, REMIC II Regular Interest II-LTAI3, REMIC II
Regular Interest II-LTAI4, REMIC II Regular Interest II-LTAI5, REMIC II Regular
Interest II-LTAI6, REMIC II Regular Interest II-LTAI7, REMIC II Regular Interest
II-LTAI8, REMIC II Regular Interest II-LTAI9, REMIC II Regular Interest
II-LTMI1, REMIC II Regular Interest II-LTMI2, REMIC II Regular Interest II-LTB1
and REMIC II Regular Interest II-LTP1, in each case as of such date of
determination.
"REMIC II Group I Principal Loss Allocation Amount": With
respect to any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Group I Mortgage Loans and REO
Properties in Loan Group I then outstanding and (ii) 1 minus a fraction, the
numerator of which is two times the aggregate Uncertificated Balance of REMIC II
Regular Interest II-LTAI1, REMIC II Regular Interest II-LTAI2, REMIC II Regular
Interest II-LTAI3, REMIC II Regular Interest II-LTAI4, REMIC II Regular Interest
II-LTAI5, REMIC II Regular Interest II-LTAI6, REMIC II Regular Interest
II-LTAI7, REMIC II Regular Interest II-LTAI8, REMIC II Regular Interest
II-LTAI9, REMIC II Regular Interest II-LTMI1, REMIC II Regular Interest II-LTMI2
and REMIC II Regular Interest II-LTB1 and the denominator of which is the
aggregate Uncertificated Balance of REMIC II Regular Interest II-LTAI1, REMIC II
Regular Interest II-LTAI2, REMIC II Regular Interest II-LTAI3, REMIC II Regular
Interest II-LTAI4, REMIC II Regular Interest II-LTAI5, REMIC II Regular Interest
II-LTAI6, REMIC II Regular Interest II-LTAI7, REMIC II Regular Interest
II-LTAI8, REMIC II Regular Interest II-LTAI9, REMIC II Regular Interest
II-LTMI1, REMIC II Regular Interest II-LTMI2, REMIC II Regular Interest II-LTB1
and REMIC II Regular Interest II-LTZZ1.
"REMIC II Group II Interest Loss Allocation Amount": With
respect to any Distribution Date, an amount equal to (a) the product of (i) the
aggregate Stated Principal Balance of the Group II Mortgage Loans and REO
Properties in Loan Group II then outstanding and (ii) the REMIC II Remittance
Rate for REMIC II Regular Interest II-LTAA2 minus the Group II Marker Rate,
divided by (b) 12.
"REMIC II Group II Overcollateralized Amount": With respect to
any date of determination, (i) 1.00% of the aggregate Uncertificated Balance of
REMIC II Regular Interest II-LTAA2, REMIC II Regular Interest II-LTAII1, REMIC
II Regular Interest II-LTAII2, REMIC II Regular Interest II-LTAII3, REMIC II
Regular Interest II-LTAII4, REMIC II Regular Interest II-LTAII5, REMIC II
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Regular Interest II-LTAII6, REMIC II Regular Interest II-LTAII7, REMIC II
Regular Interest II-LTAII8, REMIC II Regular Interest II-LTAII9, REMIC II
Regular Interest II-LTM2, REMIC II Regular Interest II-LTB2, REMIC II Regular
Interest II-LTZZ2 and REMIC II Regular Interest II-LTP2 minus (ii) the aggregate
Uncertificated Balance of REMIC II Regular Interest II-LTAII1, REMIC II Regular
Interest II- LTAII2, REMIC II Regular Interest II-LTAII3, REMIC II Regular
Interest II-LTAII4, REMIC II Regular Interest II-LTAII5, REMIC II Regular
Interest II-LTAII6, REMIC II Regular Interest II-LTAII7, REMIC II Regular
Interest II-LTAII8, REMIC II Regular Interest II-LTAII9, REMIC II Regular
Interest II- LTM2, REMIC II Regular Interest II-LTB2 and REMIC II Regular
Interest II-LTP2, in each case as of such date of determination.
"REMIC II Group II Principal Loss Allocation Amount": With
respect to any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Group II Mortgage Loans and REO
Properties in Loan Group II then outstanding and (ii) 1 minus a fraction, the
numerator of which is two times the aggregate Uncertificated Balance of REMIC II
Regular Interest II- LTAII1, REMIC II Regular Interest II-LTAII2, REMIC II
Regular Interest II-LTAII3, REMIC II Regular Interest II-LTAII4, REMIC II
Regular Interest II-LTAII5, REMIC II Regular Interest II-LTAII6, REMIC II
Regular Interest II-LTAII7, REMIC II Regular Interest II-LTAII8, REMIC II
Regular Interest II- LTAII9, REMIC II Regular Interest II-LTM2 and REMIC II
Regular Interest II-LTB2 and the denominator of which is the aggregate
Uncertificated Balance of REMIC II Regular Interest II-LTAII1, REMIC II Regular
Interest II-LTAII2, REMIC II Regular Interest II-LTAII3, REMIC II Regular
Interest II-LTAII4, REMIC II Regular Interest II-LTAII5, REMIC II Regular
Interest II-LTAII6, REMIC II Regular Interest II-LTAII7, REMIC II Regular
Interest II-LTAII8, REMIC II Regular Interest II-LTAII9, REMIC II Regular
Interest II-LTM2, REMIC II Regular Interest II-LTB2 and REMIC II Regular
Interest II-LTZZ2.
"REMIC II Group III 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 Group III Mortgage Loans and REO
Properties in Loan Group III then outstanding and (ii) the REMIC II Remittance
Rate for REMIC II Regular Interest II-LTAA3 minus the Group III Marker Rate,
divided by (b) 12.
"REMIC II Group III Overcollateralized Amount": With respect
to any date of determination, (i) 1.00% of the aggregate Uncertificated Balance
of REMIC II Regular Interest II-LTAA3, REMIC II Regular Interest II-LTAIII1,
REMIC II Regular Interest II-LTAIII2, REMIC II Regular Interest II-LTAIII3,
REMIC II Regular Interest II-LTM3, REMIC II Regular Interest II-LTB3, REMIC II
Regular Interest II-LTZZ3 and REMIC II Regular Interest II-LTP3 minus (ii) the
aggregate Uncertificated Balance of REMIC II Regular Interest II-LTAIII1, REMIC
II Regular Interest II-LTAIII2, REMIC II Regular Interest II-LTAIII3, REMIC II
Regular Interest II-LTM3, REMIC II Regular Interest II-LTB3 and REMIC II Regular
Interest II-LTP3, in each case as of such date of determination.
"REMIC II Group III Principal Loss Allocation Amount": With
respect to any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Group III Mortgage Loans and REO
Properties in Loan Group III then outstanding and (ii) 1 minus a fraction, the
numerator of which is two times the aggregate Uncertificated Balance of REMIC II
Regular Interest II-
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LTAIII1, REMIC II Regular Interest II-LTAIII2, REMIC II Regular Interest
II-LTAIII3, REMIC II Regular Interest II-LTM3 and REMIC II Regular Interest
II-LTB3 and the denominator of which is the aggregate Uncertificated Balance of
REMIC II Regular Interest II-LTAIII1, REMIC II Regular Interest II-LTAIII2,
REMIC II Regular Interest II-LTAIII3, REMIC II Regular Interest II-LTM3, REMIC
II Regular Interest II-LTB3 and REMIC II Regular Interest II-LTZZ3.
"REMIC II Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at the related REMIC II Remittance 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 Balance as set forth in the Preliminary Statement hereto. The
designations for the respective REMIC II Regular Interests are set forth in the
Preliminary Statement hereto.
"REMIC II Remittance Rate": With respect to REMIC II Regular
Interest II-LTAA1, REMIC II Regular Interest II-LTAI1, REMIC II Regular Interest
II-LTAI2, REMIC II Regular Interest II-LTAI3, REMIC II Regular Interest
II-LTAI4, REMIC II Regular Interest II-LTAI5, REMIC II Regular Interest
II-LTAI6, REMIC II Regular Interest II-LTAI7, REMIC II Regular Interest
II-LTAI8, REMIC II Regular Interest II-LTAI9, REMIC II Regular Interest
II-LTMI1, REMIC II Regular Interest II-LTMI2, REMIC II Regular Interest II-LTB1,
REMIC II Regular Interest II-LTZZ1 and REMIC II Regular Interest II-LTP1, the
weighted average of the REMIC I-A Remittance Rate on REMIC I-A Regular Interest
IA- LT1, REMIC I-A Regular Interest IA-LT2 and REMIC I-A Regular Interest IA-LTP
weighted on the basis on the Uncertificated Balance of such REMIC I-A Regular
Interests.
With respect to REMIC II Regular Interest II-LTAA2, REMIC II
Regular Interest II- LTAII1, REMIC II Regular Interest II-LTAII2, REMIC II
Regular Interest II-LTAII3, REMIC II Regular Interest II-LTAII4, REMIC II
Regular Interest II-LTAII5, REMIC II Regular Interest II-LTAII6, REMIC II
Regular Interest II-LTAII7, REMIC II Regular Interest II-LTAII8, REMIC II
Regular Interest II- LTAII9, REMIC II Regular Interest II-LTM2, REMIC II Regular
Interest II-LTB2, REMIC II Regular Interest II-LTZZ2 and REMIC II Regular
Interest II-LTP2, the weighted average of the REMIC I-B Remittance Rate on REMIC
I-B Regular Interest IB-LT1 and REMIC I-B Regular Interest IB-LTP, weighted on
the basis on the Uncertificated Balance of such REMIC I-B Regular Interests.
With respect to REMIC II Regular Interest II-LTAA3, REMIC II
Regular Interest II- LTAIII1, REMIC II Regular Interest II-LTAIII2, REMIC II
Regular Interest II-LTAIII3, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest II-LTB3, REMIC II Regular Interest II-LTZZ3 and REMIC II Regular
Interest II-LTP3, the weighted average of the REMIC I-C Remittance Rate on REMIC
I-C Regular Interest IC-LT1, REMIC I-C Regular Interest IC-LT2 and REMIC I-C
Regular Interest IC- LTP, weighted on the basis on the Uncertificated Balance of
such REMIC I-C Regular Interests.
"REMIC II Group I Required Overcollateralized Amount": 1.00%
of the Group I Overcollateralization Target Amount.
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"REMIC II Group II Required Overcollateralized Amount": 1.00%
of the Group II Overcollateralization Target Amount.
"REMIC II Group III Required Overcollateralized Amount": 1.00%
of the Group III Overcollateralization Target Amount.
"REMIC III": The segregated pool of assets consisting of all
of the REMIC II Regular Interests conveyed in trust to the Trustee for the
benefit of the Class R-III Interest pursuant to Section 2.08, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G 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.
"REMIC Regular Interest": Any of the REMIC I-A Regular
Interests, the REMIC I-B Regular Interests, the REMIC I-C Regular Interests or
the REMIC II Regular Interests.
"Remittance Report": A report in form and substance acceptable
to the Trustee and Guarantor on a magnetic disk or tape prepared by the related
Servicer pursuant to Section 4.03 with such additions, deletions and
modifications as agreed to by the Trustee, the Guarantor and the related
Servicer.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code as being
included in the term "rents from real property."
"REO Account": The account or accounts maintained, or caused
to be maintained, by the related Servicer in respect of an REO Property pursuant
to Section 3.23.
"REO Disposition": The sale or other disposition of an REO
Property on behalf of REMIC I-A, REMIC I-B or REMIC I-C.
"REO Imputed Interest": As to any REO Property, for any
calendar month during which such REO Property was at any time part of REMIC I-A,
REMIC I-B or REMIC I-C, one month's interest at the applicable Net Mortgage Rate
on the Stated Principal Balance of such REO Property (or, in the case of the
first such calendar month, of the related Mortgage Loan, if appropriate) as of
the close of business on the Distribution Date in such calendar month.
"REO Principal Amortization": With respect to any REO
Property, for any calendar month, the excess, if any, of (a) the aggregate of
all amounts received in respect of such REO Property during such calendar month,
whether in the form of rental income, sale proceeds (including, without
limitation, that portion of the Termination Price paid in connection with a
purchase of all of the Mortgage Loans and REO Properties pursuant to Section
9.01 that is allocable to such REO Property) or otherwise, net of any portion of
such amounts (i) payable pursuant to Section 3.23(c) in respect of the proper
operation,
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management and maintenance of such REO Property or (ii) payable or reimbursable
to the related Servicer pursuant to Section 3.23(d) for unpaid Servicing Fees in
respect of the related Mortgage Loan and unreimbursed Servicing Advances and P&I
Advances in respect of such REO Property or the related Mortgage Loan, over (b)
the REO Imputed Interest in respect of such REO Property for such calendar
month.
"REO Property": A Mortgaged Property acquired by the related
Servicer on behalf of REMIC I-A, REMIC I-B or REMIC I-C through foreclosure or
deed-in-lieu of foreclosure, as described in Section 3.23.
"Request for Release": A release signed by a Servicing
Officer, in the form of Exhibit E attached hereto.
"Reserve Interest Rate": With respect to any Interest
Determination Date, the rate per annum that the Trustee determines to be either
(i) the arithmetic mean (rounded upwards if necessary to the nearest whole
multiple of 1/16%) of the one-month U.S. dollar lending rates which New York
City banks selected by the Trustee, after consultation with the Depositor and
with the consent of the Certificate Insurer and the Guarantor, are quoting on
the relevant Interest Determination Date to the principal London offices of
leading banks in the London interbank market or (ii) in the event that the
Trustee can determine no such arithmetic mean, the lowest one-month U.S. dollar
lending rate which New York City banks selected by the Trustee, after
consultation with the Depositor and with the consent of the Certificate Insurer
and the Guarantor, are quoting on such Interest Determination Date to leading
European banks.
"Residential Dwelling": Any one of the following: (i) an
attached, detached or semi- detached one-family dwelling, (ii) an attached,
detached or semi-detached two-to four-family dwelling, (iii) a one-family
dwelling unit in a Xxxxxx Xxx eligible condominium project, or (iv) an attached,
detached or semi-detached one-family dwelling in a planned unit development,
none of which is a co-operative or mobile home (as defined in 00 Xxxxxx Xxxxxx
Code, Section 5402(6)).
"Residual Certificate": The Class R-I Certificates, the Class
R-II Certificates, the Class R- III Certificates and the Class R-X Certificates.
"Residual Interest": The sole class of "residual interests" in
a REMIC within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee,
any vice president, managing director, director, any assistant vice president,
the Secretary, any assistant secretary, the Treasurer, any assistant treasurer,
any associate, any trust officer or assistant trust officer or any other officer
of the Trustee having direct responsibility over this Agreement or otherwise
engaged in performing functions similar to those performed by any of the above
designated officers and, with respect to a particular matter, to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"S&P": Standard & Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies,
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Inc., or its successor in interest.
"Seller": NC Capital Corporation, or its successor in
interest, in its capacity as seller under the Mortgage Loan Purchase Agreement.
"Senior Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (i) the Interest Distribution
Amount for such Distribution Date for the Class A Certificates and the Class
M-I-1 Certificates and (ii) the Interest Carry Forward Amount, if any, for such
Distribution Date for the Class A Certificates and the Class M-I-1 Certificates.
"Servicers": With respect to the Group I Mortgage Loans, GMAC.
With respect to the Group II Mortgage Loans, Countrywide.
"Servicer Event of Default": As to either Servicer, one or
more of the events described in Section 7.01 with respect to such Servicer.
"Servicer Prepayment Charge Payment Amount": The amounts
payable by either Servicer in respect of any waived Prepayment Charges pursuant
to Section 2.05 or Section 3.01.
"Servicer Remittance Date": With respect to any Distribution
Date, by 3:00 p.m. New York time on the Business Day preceding the related
Distribution Date.
"Servicer Termination Test": With respect to GMAC and any
Distribution Date, the Servicer Termination Test will be failed if either (i) a
Delinquency Trigger exists with respect to such Distribution Date, or (ii) the
Cumulative Loss Percentage exceeds the applicable percentages set forth below
with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
August 2007 through July 2008 1.75%
August 2008 through July 2009 3.00%
August 2009 through July 2010 4.00%
August 2010 and thereafter 4.75%
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.09.
"Servicing Advances": The reasonable "out-of-pocket" costs and
expenses incurred by either Servicer in connection with a default, delinquency
or other unanticipated event by a Servicer in the performance of its servicing
obligations, including, but not limited to, the cost of (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) any enforcement or
judicial proceedings, including but not limited to foreclosures, in respect of a
particular Mortgage Loan, (iii) the management (including reasonable fees in
connection therewith) and liquidation of any REO Property and (iv) the
performance of its obligations under Section 3.01, Section 3.09, Section 3.14,
Section 3.16 and Section 3.23. Neither Servicer shall be required to make any
Nonrecoverable Servicing Advances.
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"Servicing Fee": With respect to each Mortgage Loan and for
any calendar month, an amount equal to the Servicing Fee Rate accrued for one
month (or in the event of any payment of interest which accompanies a Principal
Prepayment in full or in part made by the Mortgagor during such calendar month,
interest for the number of days covered by such payment of interest) on the same
principal amount on which interest on such Mortgage Loan accrues for such
calendar month, calculated on the basis of a 360-day year consisting of twelve
30-day months. A portion of such Servicing Fee may be retained by any
Sub-Servicer as its servicing compensation.
"Servicing Fee Rate": With respect to the Group I Mortgage
Loans and the first lien Group II Mortgage Loans, 0.35% per annum. With respect
to the second lien Group II Mortgage Loans and the Group III Mortgage Loans,
0.50% per annum.
"Servicing Officer": Any officer of a Servicer involved in, or
responsible for, the administration and servicing of Mortgage Loans, whose name
and specimen signature appear on a list of Servicing Officers furnished by such
Servicer to the Trustee, the Depositor, the Guarantor and the Certificate
Insurer on the Closing Date, as such list may from time to time be amended.
"Single Certificate": With respect to any Class of
Certificates (other than the Class P Certificates and the Residual
Certificates), a hypothetical Certificate of such Class evidencing a Percentage
Interest for such Class corresponding to an initial Certificate Principal
Balance or Notional Amount of $1,000. With respect to the Class P Certificates
and the Residual Certificates, a hypothetical Certificate of such Class
evidencing a 100% Percentage Interest in such Class.
"Special Servicer": As defined in Section 3.13 hereof.
"Specially Serviced Mortgage Loan": A Mortgage Loan that (i)
has been delinquent in payment with respect to three or more monthly payments
(provided, however, that the third such payment shall not be deemed to be
delinquent for purposes of this clause (i) until the close of business on the
last day of the month in which such payment first became due), and (ii) has been
transferred to the Special Servicer in accordance with Section 3.13.
"Startup Day": With respect to each Trust REMIC, the day
designated as such pursuant to Section 10.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan:
(a) as of any date of determination up to but not including the Distribution
Date on which the proceeds, if any, of a Liquidation Event with respect to such
Mortgage Loan would be distributed, the principal balance of such Mortgage Loan
as of the Cut-off Date, as shown in the Mortgage Loan Schedule, minus the sum of
(i) the principal portion of each Monthly Payment due on a Due Date subsequent
to the Cut-off Date, to the extent received from the Mortgagor or advanced by
the related Servicer and distributed pursuant to Section 4.01 on or before such
date of determination, (ii) all Principal Prepayments received after the Cut-off
Date, to the extent distributed pursuant to Section 4.01 on or before such date
of determination, (iii) all Liquidation Proceeds and Insurance Proceeds applied
by the related Servicer as recoveries of principal in accordance
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with the provisions of Section 3.16, to the extent distributed pursuant to
Section 4.01 on or before such date of determination, and (iv) any Realized Loss
incurred with respect thereto as a result of a Deficient Valuation made during
or prior to the Prepayment Period for the most recent Distribution Date
coinciding with or preceding such date of determination; and (b) as of any date
of determination coinciding with or subsequent to the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, zero. With respect to any REO Property: (a) as of any date
of determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of REMIC I-A, REMIC I-B or REMIC I-C, minus the sum of
(i) if such REO Property was acquired before the Distribution Date in any
calendar month, the principal portion of the Monthly Payment due on the Due Date
in the calendar month of acquisition, to the extent advanced by the related
Servicer and distributed pursuant to Section 4.01 on or before such date of
determination, and (ii) the aggregate amount of REO Principal Amortization in
respect of such REO Property for all previously ended calendar months, to the
extent distributed pursuant to Section 4.01 on or before such date of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, zero.
"Sub-Servicer": Any Person with which either Servicer has
entered into a Sub-Servicing Agreement and which meets the qualifications of a
Sub-Servicer pursuant to Section 3.02.
"Sub-Servicing Account": An account established by a
Sub-Servicer which meets the requirements set forth in Section 3.08 and is
otherwise acceptable to the applicable Servicer.
"Sub-Servicing Agreement": The written contract between a
Servicer and a Sub-Servicer relating to servicing and administration of certain
Mortgage Loans as provided in Section 3.02.
"Subsequent Recoveries": As of any Distribution Date, amounts
received by either Servicer (net of any related expenses permitted to be
reimbursed pursuant to Section 3.11) specifically related to a Mortgage Loan
that was the subject of a liquidation or an REO Disposition prior to the related
Prepayment Period that resulted in a Realized Loss.
"Substitution Shortfall Amount": As defined in Section
2.03(b).
"Tax Returns": The federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of the Trust Fund due to the classification of portions
thereof as REMICs under the REMIC Provisions, together with any and all other
information reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
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"Telerate Page 3750": The display designated as page "3750" on
the Dow Xxxxx Telerate Capital Markets Report (or such other page as may replace
page 3750 on that report for the purpose of displaying London interbank offered
rates of major banks).
"Termination Price": As defined in Section 9.01.
"Terminator": As defined in Section 9.01.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trust": The express trust created hereunder in Section 2.01.
"Trust Fund": Collectively, all of the assets of the Trust
REMICs, and the other assets conveyed by the Depositor to the Trustee pursuant
to Section 2.01.
"Trust REMIC": Any of REMIC I-A, REMIC I-B, REMIC I-C, REMIC
II or REMIC III.
"Trustee": Deutsche Bank National Trust Company, a national
banking association, or its successor in interest, or any successor trustee
appointed as herein.
"Trustee Fee": The amount payable to the Trustee on each
Distribution Date pursuant to Section 8.05 as compensation for all services
rendered by it in the execution of the trust hereby created and in the exercise
and performance of any of the powers and duties of the Trustee hereunder, which
amount shall equal the Trustee Fee Rate accrued for one month on the aggregate
Stated Principal Balance of the Mortgage Loans and any REO Properties as of the
first day of the related Due Period (or, in the case of the initial Distribution
Date, as of the Cut-off Date) and the Group I Initial Deposit, the Group III-A
Initial Deposit and the Group III-B Initial Deposit, calculated on the basis of
a 360-day year consisting of twelve 30-day months.
"Trustee Fee Rate": 0.0024% per annum.
"Uncertificated Balance": The amount of any REMIC Regular
Interest outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Balance of each REMIC Regular Interest shall equal the amount
set forth in the Preliminary Statement hereto as its initial uncertificated
balance. On each Distribution Date, the Uncertificated Balance of each REMIC
Regular Interest shall be
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reduced by all distributions of principal made on such REMIC Regular Interest on
such Distribution Date pursuant to Section 4.01 and, if and to the extent
necessary and appropriate, shall be further reduced on such Distribution Date by
Realized Losses as provided in Section 4.04. The Uncertificated Balances of
REMIC II Regular Interest II-LTZZ1, REMIC II Regular Interest II-LTZZ2 and REMIC
II Regular Interest II-LTZZ3 shall each be increased by interest deferrals as
provided in Section 4.01(2). The Uncertificated Balance of each REMIC Regular
Interest shall never be less than zero.
"Uncertificated Interest": With respect to any REMIC Regular
Interest for any Distribution Date, one month's interest at the REMIC I-A
Remittance Rate, REMIC I-B Remittance Rate, REMIC I-C Remittance Rate or REMIC
II Remittance Rate, as the case may be, applicable to such REMIC Regular
Interest for such Distribution Date, accrued on the Uncertificated Balance
thereof immediately prior to such Distribution Date. Uncertificated Interest in
respect of any REMIC Regular Interest shall accrue on the basis of a 360-day
year consisting of twelve 30-day months. Uncertificated Interest with respect to
each Distribution Date, as to any REMIC Regular Interest, shall be reduced by an
amount equal to the sum of (a) the aggregate Prepayment Interest Shortfall, if
any, for such Distribution Date to the extent not covered by payments pursuant
to Section 3.24 and (b) the aggregate amount of any Relief Act Interest
Shortfall, if any allocated, in each case, to such REMIC Regular Interest
pursuant to Section 1.02. In addition, Uncertificated Interest with respect to
each Distribution Date, as to any REMIC Regular Interest shall be reduced by
Realized Losses, if any, allocated to such REMIC Regular Interest pursuant to
Section 1.02 and Section 4.04.
"Underwriter's Exemption": An individual exemption issued by
the United States Department of Labor, as Prohibited Transaction Exemption
("PTE"), 90-30, as amended, to Bear, Xxxxxxx & Co. Inc., for specific offerings
in which Bear, Xxxxxxx & Co. Inc. or any person directly or indirectly, through
one or more intermediaries, controlling, controlled by or under common control
with Bear, Xxxxxxx & Co. Inc. is an underwriter, placement agent or a manager or
co-manager of the underwriting syndicate or selling group where the trust and
the offered certificates meet specified conditions.
"Uninsured Cause": Any cause of damage to a Mortgaged Property
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies required to be maintained pursuant to Section
3.14.
"United States Person": A citizen or resident of the United
States, a corporation, partnership (or other entity treated as a corporation or
partnership for United States federal income tax purposes) created or organized
in, or under the laws of, the United States, any state thereof, or the District
of Columbia (except in the case of a partnership, to the extent provided in
Treasury regulations) provided that, for purposes solely of the restrictions on
the transfer of Residual Certificates, no partnership or other entity treated as
a partnership for United States federal income tax purposes shall be treated as
a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are required by the applicable
operative agreement to be United States Persons, or an estate the income of
which 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
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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 trust. The term "United States"
shall have the meaning set forth in Section 7701 of the Code or successor
provisions.
"Value": With respect to any Mortgaged Property, the lesser of
(i) the lesser of (a) the value thereof as determined by an appraisal made for
the Originator of the Mortgage Loan at the time of origination of the Mortgage
Loan by an appraiser who met the minimum requirements of Xxxxxx Xxx and Xxxxxxx
Mac and (b) the value thereof as determined by a review appraisal conducted by
the Originator in accordance with the Originator's underwriting guidelines, and
(ii) the purchase price paid for the related Mortgaged Property by the Mortgagor
with the proceeds of the Mortgage Loan; provided, however, (A) in the case of a
Refinanced Mortgage Loan, such value of the Mortgaged Property is based solely
upon the lesser of (1) the value determined by an appraisal made for the
Originator of such Refinanced Mortgage Loan at the time of origination of such
Refinanced Mortgage Loan by an appraiser who met the minimum requirements of
Xxxxxx Mae and Xxxxxxx Mac and (2) the value thereof as determined by a review
appraisal conducted by the Originator in accordance with the Originator's
underwriting guidelines, and (B) in the case of a Mortgage Loan originated in
connection with a "lease-option purchase," such value of the Mortgaged Property
is based on the lower of the value determined by an appraisal made for the
Originator of such Mortgage Loan at the time of origination or the sale price of
such Mortgaged Property if the "lease option purchase price" was set less than
12 months prior to origination, and is based on the value determined by an
appraisal made for the Originator of such Mortgage Loan at the time of
origination if the "lease option purchase price" was set 12 months or more prior
to origination.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. With respect to any date
of determination, 98% of all Voting Rights will be allocated among the Holders
of the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates in proportion to the then outstanding Certificate Principal
Balances of their respective Certificates, 1% of all Voting Rights will be
allocated to the Holders of the Class P Certificates and 1% of all Voting Rights
will be allocated among the Holders of the Residual Certificates. The Voting
Rights allocated to each Class of Certificates shall be allocated among Holders
of each such Class in accordance with their respective Percentage Interests as
of the most recent Record Date. Notwithstanding any of the foregoing, (i) unless
a Certificate Insurer Default is continuing, on any date on which any Insured
Certificates are outstanding or any amounts are owed to the Certificate Insurer
under the Insurance Agreement or this Agreement, the Certificate Insurer will
have all Voting Rights of the Class A Certificates, and (ii) unless the
Guarantor defaults on its obligation under the Guaranty, on any date on which a
Certificate Insurer Default is continuing and any amounts are owed to the
Guarantor under this Agreement, the Guarantor will have all Voting Rights of the
Guaranteed Certificates. So long as the Certificate Insurer and the Guarantor
have the Voting Rights pursuant to the preceding sentence, the reference to
"holders of Certificates representing Voting Rights" shall be deemed to refer to
the Certificate Insurer or the Guarantor, as applicable.
SECTION 1.02. Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of Accrued Certificate
Interest and the amount of the Interest Distribution Amount for the Group I
Class A Certificates, the Group I Mezzanine Certificates
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and the Class CE-I Certificates for any Distribution Date, (1) the aggregate
amount of any Prepayment Interest Shortfalls (to the extent not covered by
payments by the related Servicer pursuant to Section 3.24) and any Relief Act
Interest Shortfall incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, among the Class CE-I 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 Notional Amount
of each such Certificate and, thereafter, among the Group I Class A Certificates
and the Group I Mezzanine 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 Notional Amount of each
such Certificate and (2) the aggregate amount of any Realized Losses and Net WAC
Rate Carryover Amounts incurred for any Distribution Date shall be allocated
among the Class CE-I 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 Notional Amount of each such Certificate.
For purposes of calculating the amount of Accrued Certificate
Interest and the amount of the Interest Distribution Amount for the Group II
Class A Certificates, the Group II Mezzanine Certificates and the Class CE-II
Certificates for any Distribution Date, (1) the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
related Servicer pursuant to Section 3.24) and any Relief Act Interest Shortfall
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated first, among the Class CE-II 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 Notional Amount of each such Certificate
and, thereafter, among the Group II Class A Certificates and the Group II
Mezzanine 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 Notional Amount of each such
Certificate and (2) the aggregate amount of any Realized Losses and Net WAC Rate
Carryover Amounts incurred for any Distribution Date shall be allocated among
the Class CE-II 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 Notional Amount of each such Certificate.
For purposes of calculating the amount of Accrued Certificate
Interest and the amount of the Interest Distribution Amount for the Group III
Class A Certificates, the Group III Mezzanine Certificates and the Class CE-III
Certificates for any Distribution Date, (1) the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
related Servicer pursuant to Section 3.24) and any Relief Act Interest Shortfall
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated first, among the Class CE-III 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 Notional Amount of each such Certificate
and, thereafter, among the Group III Class A Certificates and the Group III
Mezzanine 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 Notional Amount of each such
Certificate and (2) the aggregate amount of any Realized Losses and Net WAC Rate
Carryover Amounts incurred for any Distribution Date shall be allocated among
the Class CE-III 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 Notional Amount of each such Certificate.
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For purposes of calculating the amount of Uncertificated
Interest for the REMIC I-A Regular Interests, the REMIC I-B Regular Interests
and the REMIC I-C Regular Interests for any Distribution Date, the aggregate
amount of any Prepayment Interest Shortfalls (to the extent not covered by
payments by the related Servicer pursuant to Section 3.24) and any Relief Act
Interest Shortfall incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated shall be allocated (i) with respect to the
Group I Mortgage Loans and (a) the first Distribution Date, to REMIC I-A Regular
Interest IA-LT1, to the extent of one month's interest at the then applicable
REMIC I-A Remittance Rate on the Uncertificated Balance of such REMIC I-A
Regular Interest and (b) any Distribution Date thereafter, to REMIC I-A Regular
Interest IA-LT1 and REMIC I-A Regular Interest IA-LT2, pro rata, to the extent
of one month's interest at the then applicable REMIC I-A Remittance Rate on the
Uncertificated Balance of such REMIC I-A Regular Interest, (ii) with respect to
the Group II Mortgage Loans to REMIC I-B Regular Interest IB-LT1, to the extent
of one month's interest at the then applicable REMIC I-B Remittance Rate on the
Uncertificated Balance of such REMIC I-B Regular Interest and (iii) with respect
to the Group III Mortgage Loans and (a) the first Distribution Date, to REMIC
I-C Regular Interest IC- LT1, to the extent of one month's interest at the then
applicable REMIC I-C Remittance Rate on the Uncertificated Balance of such REMIC
I-C Regular Interest and (b) any Distribution Date thereafter, to REMIC I-C
Regular Interest IC-LT1 and REMIC I-C Regular Interest IC-LT2, pro rata, to the
extent of one month's interest at the then applicable REMIC I-C Remittance Rate
on the Uncertificated Balance of such REMIC I-C Regular Interest.
For purposes of calculating the amount of Uncertificated
Interest for the REMIC II Regular Interests for any Distribution Date, the
aggregate amount of any Prepayment Interest Shortfalls (to the extent not
covered by payments by the related Servicer pursuant to Section 3.24) and any
Relief Act Interest Shortfall incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated shall be allocated (i) with respect to the
Group I Mortgage Loans, among REMIC II Regular Interest II- LTAA1, REMIC II
Regular Interest II-LTAI1, REMIC II Regular Interest II-LTAI2, REMIC II Regular
Interest II-LTAI3, REMIC II Regular Interest II-LTAI4, REMIC II Regular Interest
II-LTAI5, REMIC II Regular Interest II-LTAI6, REMIC II Regular Interest
II-LTAI7, REMIC II Regular Interest II-LTAI8, REMIC II Regular Interest
II-LTAI9, REMIC II Regular Interest II-LTMI1, REMIC II Regular Interest
II-LTMI2, REMIC II Regular Interest II-LTB1 and REMIC II Regular Interest
II-LTZZ1 on a PRO RATA basis based on, and to the extent of, one month's
interest at the then applicable respective REMIC II Remittance Rate on the
respective Uncertificated Balance of each such REMIC II Regular Interest, (i)
with respect to the Group II Mortgage Loans, among REMIC II Regular Interest
II-LTAA2, REMIC II Regular Interest II-LTAII1, REMIC II Regular Interest
II-LTAII2, REMIC II Regular Interest II-LTAII3, REMIC II Regular Interest
II-LTAII4, REMIC II Regular Interest II-LTAII5, REMIC II Regular Interest II-
LTAII6, REMIC II Regular Interest II-LTAII7, REMIC II Regular Interest
II-LTAII8, REMIC II Regular Interest II-LTAII9, REMIC II Regular Interest
II-LTM2, REMIC II Regular Interest II-LTB2 and REMIC II Regular Interest
II-LTZZ2 on a PRO RATA basis based on, and to the extent of, one month's
interest at the then applicable respective REMIC II Remittance Rate on the
respective Uncertificated Balance of each such REMIC II Regular Interest and
(iii) with respect to the Group III Mortgage Loans, among REMIC II Regular
Interest II-LTAA3, REMIC II Regular Interest II-LTAIII1, REMIC II Regular
Interest II-LTAIII2, REMIC II Regular Interest II-LTAIII3, REMIC II Regular
Interest II-LTM3, REMIC II Regular Interest II-LTB3 and REMIC II Regular
Interest II-LTZZ3 on a PRO RATA basis based
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on, and to the extent of, one month's interest at the then applicable respective
REMIC II Remittance Rate on the respective Uncertificated Balance of each such
REMIC II Regular Interest.
SECTION 1.03. Rights of the Certificate Insurer and the
Guarantor.
(a) Notwithstanding anything to the contrary anywhere in this
Agreement, all rights of the Guarantor hereunder, except any rights to
indemnification, shall permanently terminate upon the later to occur of (A) such
time as the Guaranteed Certificates shall no longer be outstanding and (B) the
payment in full to the Guarantor of any amounts owed to the Guarantor in respect
of its guarantee of payment on the Guaranteed Certificates; provided that the
Guarantor shall not have any rights hereunder, except indemnification rights, so
long as any default has occurred and is continuing under the Guaranty.
(b) Notwithstanding anything to the contrary anywhere in this
Agreement, all rights of the Certificate Insurer hereunder, except any rights to
indemnification, shall permanently terminate upon the later to occur of (A) such
time as the Class A Certificates shall no longer be outstanding and (B) the
payment in full to the Certificate Insurer of any amounts owed to the
Certificate Insurer hereunder or under the Insurance Agreement; provided that
the Certificate Insurer shall not have any rights hereunder, except
indemnification rights and the right to receive distributions pursuant to
Article IV, so long as any Certificate Insurer Default has occurred and is
continuing.
(c) If the Certificate Insurer is the Controlling Person
hereunder, prior to taking any action as the Controlling Person under this
Section 1.03(c), the Certificate Insurer shall (i) obtain the Guarantor's prior
written consent to such action if such action (i) relates to either the Group I
Class A Certificates or Group I Mortgage Loans or (ii) is taken pursuant to
Section 3.02(a), 3.03, 6.04, 7.01, 7.02(a), 7.04, 8.07 or 8.10 of this
Agreement, which consent shall not be unreasonably withheld by the Guarantor.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of the Mortgage Loans.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee without recourse, for the benefit of the Certificateholders and the
Certificate Insurer, all the right, title and interest of the Depositor,
including any security interest therein for the benefit of the Depositor, in and
to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of
the Depositor under the Mortgage Loan Purchase Agreement, and all other assets
included or to be included in REMIC I-A, REMIC I-B and REMIC I-C. Such
assignment includes all interest and principal received by the Depositor or
either Servicer on or with respect to the Mortgage Loans (other than payments of
principal and interest due on such Mortgage Loans on or before the Cut-off
Date). The Depositor herewith delivers to the Trustee an executed copy of the
Mortgage Loan Purchase Agreement.
In connection with such transfer and assignment, the
Depositor, does hereby deliver to, and deposit with the Trustee the following
documents or instruments with respect to each Mortgage Loan so transferred and
assigned (in each case, a "Mortgage File") :
(i) the original Mortgage Note, endorsed in blank or in the
following form "Pay to the order of Deutsche Bank National Trust
Company, as Trustee under the applicable agreement, without recourse,"
with all prior and intervening endorsements showing a complete chain of
endorsement from the originator to the Person so endorsing to the
Trustee;
(ii) the original Mortgage with evidence of recording thereon,
and the original recorded power of attorney, if the Mortgage was
executed pursuant to a power of attorney, with evidence of recording
thereon;
(iii) an original Assignment in blank;
(iv) the original recorded Assignment or Assignments showing a
complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the
immediately preceding clause (iii);
(v) the original or copies of each assumption, modification or
substitution agreement, if any; and
(vi) the original lender's title insurance policy or, if the
original title policy has not been issued, the irrevocable commitment
to issue the same.
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With respect to a maximum of approximately 2.0% of the
Original Mortgage Loans, by outstanding principal balance of the Original
Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to
in Section 2.01(i) above cannot be located, the obligations of the Depositor to
deliver such documents shall be deemed to be satisfied upon delivery to the
Trustee of a photocopy of such Mortgage Note, if available, with a lost note
affidavit substantially in the form of Exhibit I attached hereto. If any of the
original Mortgage Notes for which a lost note affidavit was delivered to the
Trustee is subsequently located, such original Mortgage Note shall be delivered
to the Trustee within three Business Days.
If any of the documents referred to in Sections 2.01(ii),
(iii) or (iv) above has, as of the Closing Date, been submitted for recording
but either (x) has not been returned from the applicable public recording office
or (y) has been lost or such public recording office has retained the original
of such document, the obligations of the Depositor to deliver such documents
shall be deemed to be satisfied upon (1) delivery to the Trustee of a copy of
each such document certified by the Originator in the case of (x) above or the
applicable public recording office in the case of (y) above to be a true and
complete copy of the original that was submitted for recording and (2) if such
copy is certified by the Originator, delivery to the Trustee promptly upon
receipt thereof of either the original or a copy of such document certified by
the applicable public recording office to be a true and complete copy of the
original. Notice shall be provided to the Trustee and the Rating Agencies by the
Depositor if delivery pursuant to clause (2) above will be made more than 180
days after the Closing Date. If the original lender's title insurance policy was
not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or
cause to be delivered to the Trustee, promptly after receipt thereof, the
original lender's title insurance policy. The Depositor shall deliver or cause
to be delivered to the Trustee promptly upon receipt thereof any other original
documents constituting a part of a Mortgage File received with respect to any
Mortgage Loan, including, but not limited to, any original documents evidencing
an assumption or modification of any Mortgage Loan.
The Trustee shall enforce the obligations of the Seller under
the Mortgage Loan Purchase Agreement to promptly (within sixty Business Days
following the later of the Closing Date and the date of receipt by the Seller of
the recording information for a Mortgage, but in no event later than ninety days
following the Closing Date) submit or cause to be submitted for recording, at no
expense to the Trust Fund, the Trustee, the Certificate Insurer, the Guarantor
or the Depositor, in the appropriate public office for real property records,
each Assignment referred to in Sections 2.01(iii) and (iv) above and the
Depositor shall execute each original Assignment or cause each original
Assignment to be executed in the following form: "Deutsche Bank National Trust
Company, as Trustee under the applicable agreement." In the event that any such
Assignment is lost or returned unrecorded because of a defect therein, the
Seller shall promptly prepare or cause to be prepared a substitute Assignment or
cure or cause to be cured such defect, as the case may be, and thereafter cause
each such Assignment to be duly recorded. If the Seller is unable to pay the
cost of recording the Assignments, such expense will be paid by the Trustee and
shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense.
Notwithstanding the foregoing, the Trustee shall not be responsible for
determining whether any Assignment delivered by the Depositor hereunder is in
recordable form.
Notwithstanding the foregoing, however, for administrative
convenience and facilitation of
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servicing and to reduce closing costs, the Assignments shall not be required to
be submitted for recording (except with respect to any Mortgage Loan located in
Florida, Hawaii, Maryland or Mississippi) unless the Trustee or the Depositor
receives notice that such failure to record would result in a withdrawal or a
downgrading by any Rating Agency of the rating on any Class of Certificates
(which, in the case of the Class A Certificates, shall be without regard to the
Policy); provided, however, the Trustee shall enforce the obligations of the
Seller under the Mortgage Loan Purchase Agreement to submit or cause to be
submitted each Assignment for recording (at the expense of the Seller) in the
manner described above, at no expense to the Trust Fund or the Trustee, upon the
earliest to occur of: (i) reasonable direction by Holders of Certificates
entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Servicer
Event of Termination with respect to the applicable Servicer, (iii) the
occurrence of a bankruptcy, insolvency or foreclosure relating to the applicable
Servicer, (iv) the occurrence of a servicing transfer as described in Section
7.02 hereof, (v) with respect to any one Assignment, the occurrence of a
bankruptcy, insolvency or foreclosure relating to the Mortgagor under the
related Mortgage and (vi) any Mortgage Loan that is 90 days or more Delinquent.
Upon receipt of written notice by the Trustee from the Servicer that recording
of the Assignments is required pursuant to one or more of the conditions set
forth in the preceding sentence, the Depositor shall be required to deliver such
Assignments or shall cause such Assignments to be delivered within 30 days
following receipt of such notice.
All original documents relating to the Mortgage Loans that are
not delivered to the Trustee are and shall be held by or on behalf of the
Seller, the Depositor or the related Servicer, as the case may be, in trust for
the benefit of the Trustee on behalf of the Certificateholders and the
Certificate Insurer. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Trustee. Any such original document
delivered to or held by the Depositor that is not required pursuant to the terms
of this Section to be a part of a Mortgage File, shall be delivered promptly to
the related Servicer.
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 (the "Trust") to be known, for convenience, as "New Century Home Equity
Loan Trust Series 2004-A" and Deutsche Bank National Trust Company is hereby
appointed as Trustee in accordance with the provisions of this Agreement. The
parties hereto acknowledge and agree that it is the policy and intention of the
Trust to acquire only Mortgage Loans meeting the requirements set forth in this
Agreement.
The Depositor hereby directs the Trustee to enter into the
Insurance Agreement. In addition, the Depositor hereby directs the Trustee to
execute, deliver and perform its obligations under the Cap Contracts on the
Closing Date and thereafter on behalf of the Holders of the Class A-I-A1
Certificates, the Class A-I-B1 Certificates, the Class A-II Certificates and the
Group II Mezzanine Certificates. The Depositor, the Servicers, the Certificate
Insurer, the Guarantor and the Holders of the Class A-I-A1 Certificates, the
Class A-I-B1 Certificates, the Class A-II Certificates and the Group II
Mezzanine Certificates by their acceptance of such Certificates acknowledge and
agree that the Trustee shall execute, deliver and perform its obligations under
the Cap Contract and shall do so solely in its capacity as Trustee of the Trust
Fund and not in its individual capacity.
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SECTION 2.02. Acceptance of REMIC I by Trustee.
The Trustee acknowledges receipt, subject to the provisions of
Section 2.01 and subject to any exceptions noted on the exception report
described in the next paragraph below, of the documents referred to in Section
2.01 (other than such documents described in Section 2.01(v)) above and all
other assets included in the definition of "REMIC I" under clauses (i), (iii),
(iv) and (v) (to the extent of amounts deposited into the Distribution Account)
and declares that it holds and will hold such documents and the other documents
delivered to it constituting a Mortgage File, and that it 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.
The Trustee agrees, for the benefit of the Certificateholders
and the Certificate Insurer, to review each Mortgage File on or before the
Closing Date and to certify to the Depositor, each Servicer, the Guarantor and
the Certificate Insurer, in substantially the form attached hereto as Exhibit
C-1 that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than any Mortgage Loan specifically identified in the exception report annexed
thereto as not being covered by such certification), (i) all documents
constituting part of such Mortgage File (other than such documents described in
Section 2.01(v)) required to be delivered to it pursuant to this Agreement are
in its possession, (ii) such documents have been reviewed by it and appear
regular on their face and relate to such Mortgage Loan and (iii) based on its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (i) through (iii), (vi),(xi),
(xii), (xv), (xvii), (xviii), (xx) through (xxiii) and (xxv) of the definition
of "Mortgage Loan Schedule" accurately reflects information set forth in the
Mortgage File. It is herein acknowledged that, in conducting such review, the
Trustee was under no duty or obligation (i) to inspect, review or examine any
such documents, instruments, certificates or other papers to determine whether
they are genuine, enforceable, or appropriate for the represented purpose or
whether they have actually been recorded or that they are other than what they
purport to be on their face or (ii) to determine whether any Mortgage File
should include any of the documents specified in clause (v) of Section 2.01.
Prior to the first anniversary date of this Agreement the
Trustee shall deliver to the Depositor, each Servicer, the Guarantor and the
Certificate Insurer a final certification in the form annexed hereto as Exhibit
C-2 evidencing the completeness of the Mortgage Files, with any applicable
exceptions noted thereon, and the Servicers shall forward a copy thereof to any
Sub-Servicer.
If in the process of reviewing the Mortgage Files and making
or preparing, as the case may be, the certifications referred to above, the
Trustee finds any document or documents constituting a part of a Mortgage File
to be missing or defective in any material respect, at the conclusion of its
review the Trustee shall so notify the Depositor, the related Servicer, the
Guarantor and the Certificate Insurer. In addition, upon the discovery by the
Depositor, either Servicer, the Guarantor or the Trustee of a breach of any of
the representations and warranties made by the Seller in the Mortgage Loan
Purchase Agreement in respect of any Mortgage Loan which materially adversely
affects such Mortgage Loan or the interests of the related Certificateholders or
the Certificate Insurer in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties and the Certificate
Insurer.
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The Trustee shall, at the written request and expense of any
Certificateholder, the Guarantor or the Certificate Insurer, provide a written
report to such Certificateholder, the Guarantor or the Certificate Insurer of
all Mortgage Files released to the Servicers for servicing purposes.
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by
the Seller.
(a) Upon discovery or receipt of notice of any materially
defective document in, or that a document is missing from, a Mortgage File or of
the breach by the Seller of any representation, warranty or covenant under the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan that materially
adversely affects the value of such Mortgage Loan or the interest therein of the
Certificateholders or the Certificate Insurer, the Trustee shall promptly notify
the Seller, the related Servicer, the Guarantor and the Certificate Insurer of
such defect, missing document or breach and request that the Seller deliver such
missing document or cure such defect or breach within 60 days from the date the
Seller was notified of such missing document, defect or breach, and if the
Seller does not deliver such missing document or cure such defect or breach in
all material respects during such period, the related Servicer, to the extent it
is not the Seller or an Affiliate of the Seller, and otherwise the Trustee shall
enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement
to repurchase such Mortgage Loan from REMIC I-A, REMIC I-B or REMIC I-C, as
applicable, at the Purchase Price within 90 days after the date on which the
Seller was notified (subject to Section 2.03(c)) of such missing document,
defect or breach, if and to the extent that the Seller is obligated to do so
under the Mortgage Loan Purchase Agreement. The Purchase Price for the
repurchased Mortgage Loan shall be remitted to the related Servicer for deposit
in the related Collection Account and the Trustee, upon receipt of written
certification from the related Servicer of such deposit, shall release to the
Seller the related Mortgage File and the Trustee shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
Seller shall furnish to it and as shall be necessary to vest in the Seller any
Mortgage Loan released pursuant hereto. The Trustee shall not have any further
responsibility with regard to such Mortgage File. In lieu of repurchasing any
such Mortgage Loan as provided above, if so provided in the Mortgage Loan
Purchase Agreement, the Seller may cause such Mortgage Loan to be removed from
REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute
one or more Qualified Substitute Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.03(b). It is understood and agreed that the
obligation of the Seller to cure or to repurchase (or to substitute for) any
Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy respecting such omission, defect or
breach available to the Trustee and the Certificateholders. The related Servicer
or the Trustee, as applicable, will be reimbursed for expenses reasonably
incurred in connection with any breach or defect giving rise to the purchase
obligation under this Section 2.03 pursuant to Section 3.11(a)(viii).
With respect to the representations and warranties made by the
Seller in the Mortgage Loan Purchase Agreement, the Trustee shall not be charged
with knowledge of any breach of any such representation or warranty by the
Seller unless a Responsible Officer of the Trustee at the Corporate Trust Office
obtains actual knowledge of such breach or the Trustee receives written notice
of such breach from the Depositor, either Servicer, the Guarantor, the
Certificate Insurer or the Certificateholders.
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(b) Any substitution of Qualified Substitute Mortgage Loans
for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected
prior to the date which is two years after the Startup Day for REMIC I.
As to any Deleted Mortgage Loan for which the Seller
substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution
shall be effected by the Seller delivering to the Trustee, for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the
Assignment to the Trustee, and such other documents and agreements, with all
necessary endorsements thereon, as are required by Section 2.01, together with
an Officers' Certificate providing that each such Qualified Substitute Mortgage
Loan satisfies the definition thereof and specifying the Substitution Shortfall
Amount (as described below), if any, in connection with such substitution. The
Trustee shall acknowledge receipt for such Qualified Substitute Mortgage Loan or
Loans and, within ten Business Days thereafter, shall review such documents as
specified in Section 2.02 and deliver to the Depositor, the related Servicer,
the Guarantor and the Certificate Insurer, with respect to such Qualified
Substitute Mortgage Loan or Loans, a certification substantially in the form
attached hereto as Exhibit C-1, with any applicable exceptions noted thereon.
Within one year of the date of substitution, the Trustee shall deliver to the
Depositor, the related Servicer, the Guarantor and the Certificate Insurer a
certification substantially in the form of Exhibit C-2 hereto with respect to
such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions
noted thereon. Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution are not part of REMIC I-A, REMIC
I-B, REMIC I-C and will be retained by the Seller. For the month of
substitution, distributions to Certificateholders will reflect the Monthly
Payment due on such Deleted Mortgage Loan on or before the Due Date in the month
of substitution, and the Seller shall thereafter be entitled to retain all
amounts subsequently received in respect of such Deleted Mortgage Loan. The
Depositor shall give or cause to be given written notice to the
Certificateholders that such substitution has taken place, shall amend the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from
the terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan
Schedule to the Trustee. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be
subject in all respects to the terms of this Agreement and the Mortgage Loan
Purchase Agreement, including, all applicable representations and warranties
thereof included in the Mortgage Loan Purchase Agreement.
For any month in which the Seller substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
related Servicer will determine the amount (the "Substitution Shortfall
Amount"), if any, by which the aggregate Purchase Price of all such Deleted
Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute
Mortgage Loan, the Stated Principal Balance thereof as of the date of
substitution, together with one month's interest on such Stated Principal
Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances
and Servicing Advances (including Nonrecoverable P&I Advances and Nonrecoverable
Servicing Advances) related thereto. On the date of such substitution, the
Seller will deliver or cause to be delivered to the related Servicer for deposit
in the related Collection Account an amount equal to the Substitution Shortfall
Amount, if any, and the Trustee, upon receipt of the related Qualified
Substitute Mortgage Loan or Loans and certification by the related Servicer of
such deposit, shall release to the Seller the related Mortgage File or
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Files and the Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, the Seller shall deliver to it and as
shall be necessary to vest therein any Deleted Mortgage Loan released pursuant
hereto.
In addition, the Seller shall obtain at its own expense and
deliver to the Trustee, the Guarantor and the Certificate Insurer an Opinion of
Counsel to the effect that such substitution will not cause (a) any federal tax
to be imposed on any Trust REMIC, including without limitation, any federal tax
imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code, or
(b) any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(c) Upon discovery by the Depositor, the Seller, the Servicer,
the Trustee, the Guarantor or the Certificate Insurer 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 within two
Business Days give written notice thereof to the other parties. In connection
therewith, the Seller shall repurchase or, subject to the limitations set forth
in Section 2.03(b), substitute one or more Qualified Substitute Mortgage Loans
for the affected Mortgage Loan within 90 days of the earlier of discovery or
receipt of such notice with respect to such affected Mortgage Loan. Any such
repurchase or substitution shall be made in the same manner as set forth in
Section 2.03(a). The Trustee shall reconvey to the Seller the Mortgage Loan to
be released pursuant hereto in the same manner, and on the same terms and
conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty.
SECTION 2.04. Reserved
SECTION 2.05. Representations, Warranties and Covenants of the
Servicers.
Each Servicer hereby represents, warrants and covenants as to
itself to the Trustee, for the benefit of the Certificateholders, and to the
Depositor, the Certificate Insurer and the Guarantor that as of the Closing Date
or as of such date specifically provided herein:
(i) It is either (a) in the case of GMAC, a corporation duly
organized and validly existing under the laws of the State of Delaware
or (b) in the case of Countrywide, a limited partnership duly organized
and validly existing under the laws of the State of Texas, and is duly
authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by such Servicer 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
and to service the Mortgage Loans in accordance with the terms of this
Agreement;
(ii) Such 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. Such Servicer has duly authorized the
execution,
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delivery and performance of this Agreement, has duly executed and
delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Depositor and the Trustee,
constitutes a legal, valid and binding obligation of such 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 such
Servicer, the servicing of the Mortgage Loans by such Servicer
hereunder, the consummation by such 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 such
Servicer and will not (A) result in a breach of any term or provision
of the organizational documents of such 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 such Servicer is a party or by which it may be bound, or any
statute, order or regulation applicable to such Servicer of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over such Servicer; and such 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 such Servicer's knowledge, would in the future
materially and adversely affect, (x) the ability of such Servicer to
perform its obligations under this Agreement or (y) the business,
operations, financial condition, properties or assets of such Servicer
taken as a whole;
(iv) Such Servicer is a HUD approved servicer or an approved
seller/servicer for Xxxxxx Xxx or Xxxxxxx Mac;
(v) Such 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;
(vi) [Reserved];
(vii) No litigation is pending against such Servicer that
would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of such Servicer to
service the Mortgage Loans or to perform any of its other obligations
hereunder in accordance with the terms hereof;
(viii) There are no actions or proceedings against, or
investigations known to it of, such 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 such Servicer of
its obligations under, or validity or enforceability of, this
Agreement;
(ix) No consent, approval, authorization or order of any court
or governmental agency
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or body is required for the execution, delivery and performance by such
Servicer of, or compliance by such 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;
(x) Such Servicer will not waive any Prepayment Charge unless
it is waived in accordance with the standard set forth in Section 3.01;
and
(xi) Each Servicer has fully furnished and will continue to
fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian and Trans Union Credit Information Company or their successors
on a monthly basis.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.05 shall survive delivery
of the Mortgage Files to the Trustee and shall inure to the benefit of the
Trustee, the Depositor, the Certificateholders, the Guarantor and the
Certificate Insurer. Upon discovery by any of the Depositor, either Servicer,
the Trustee, the Guarantor or the Certificate Insurer of a breach of any of the
foregoing representations, warranties and covenants which materially and
adversely affects the value of any Mortgage Loan or the interests therein of the
Certificateholders or the Certificate Insurer, the party discovering such breach
shall give prompt written notice (but in no event later than two Business Days
following such discovery) to the Trustee, the Guarantor and the Certificate
Insurer. Subject to Section 7.01, unless such breach shall not be susceptible of
cure within 90 days, the obligation of the related Servicer set forth in this
Section 2.05 to cure breaches shall constitute the sole remedy against such
Servicer available to the Certificateholders, the Depositor, the Guarantor and
the Trustee on behalf of the Certificateholders respecting a breach of the
representations, warranties and covenants contained in this Section 2.05.
Notwithstanding the foregoing, within 90 days of the earlier of discovery by
either Servicer or receipt of notice by either Servicer of the breach of the
representation of a Servicer set forth in Section 2.05(x) above which materially
and adversely affects the interests of the Holders of the Class P Certificates
in any Prepayment Charge, the related Servicer shall remedy such breach as
follows: the related Servicer must pay the amount of the scheduled Prepayment
Charge, for the benefit of the Holders of the Class P Certificates, by
depositing such amount into the related Collection Account, net of any amount
previously collected by such Servicer or paid by such Servicer, for the benefit
of the Holders of the Class P Certificates, in respect of such Prepayment
Charge.
SECTION 2.06. Issuance of the REMIC I-A Regular Interests and
the Class I Certificates; Issuance of the REMIC
I-B Regular Interests and the Class R-II
Certificates; Issuance of the REMIC I-C Regular
Interests and the Class R-III Certificates.
(a) The Trustee acknowledges the assignment to it of the Group
I Mortgage Loans and the delivery to it of the 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-A, the receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery and in exchange
therefor, the Trustee,
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pursuant to the written request of the Depositor executed by an officer of the
Depositor, has executed, authenticated and delivered to or upon the order of the
Depositor, the Class R-I Certificates in authorized denominations. The interests
evidenced by the Class R-I Certificates, together with the REMIC I-A Regular
Interests, constitute the entire beneficial ownership interest in REMIC I-A. The
rights of the Class R-I Certificates and REMIC II (as holder of the REMIC I-A
Regular Interest) to receive distributions from the proceeds of REMIC I-A in
respect of the Class I Certificates and the REMIC I-A Regular Interests, and all
ownership interests evidenced or constituted by the Class R-I Certificates and
the REMIC I-A Regular Interests, shall be as set forth in this Agreement.
(b) The Trustee acknowledges the assignment to it of the Group
II Mortgage Loans and the delivery to it of the 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-B, the receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery and in exchange
therefor, the Trustee, pursuant to the written request of the Depositor executed
by an officer of the Depositor, has executed, authenticated and delivered to or
upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. The interests evidenced by the Class R-II Certificates Interest,
together with the REMIC I-B Regular Interests, constitute the entire beneficial
ownership interest in REMIC I-B. The rights of the R-II Certificates and REMIC
II (as holder of the REMIC I-B Regular Interest) to receive distributions from
the proceeds of REMIC I-B in respect of the Class R-II Certificates and the
REMIC I-B Regular Interests, and all ownership interests evidenced or
constituted by the Class R-II Certificates and the REMIC I-B Regular Interests,
shall be as set forth in this Agreement.
(c) The Trustee acknowledges the assignment to it of the Group
II IMortgage Loans and the delivery to it of the 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-C, the receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery and in exchange
therefor, the Trustee, pursuant to the written request of the Depositor executed
by an officer of the Depositor, has executed, authenticated and delivered to or
upon the order of the Depositor, the Class R-III Certificates in authorized
denominations. The interests evidenced by the Class R-III Certificates, together
with the REMIC I-C Regular Interests, constitute the entire beneficial ownership
interest in REMIC I-C. The rights of the Class R-III Certificates and REMIC II
(as holder of the REMIC I-C Regular Interest) to receive distributions from the
proceeds of REMIC I-C in respect of the Class R-III Certificates and the REMIC
I-C Regular Interests, and all ownership interests evidenced or constituted by
the Class R-III Certificates and the REMIC I-C Regular Interests, shall be as
set forth in this Agreement.
SECTION 2.07. Conveyance of the REMIC I-A Regular Interests,
REMIC I-B Regular Interests and REMIC I-C
Regular Interests; Acceptance of REMIC II by the
Trustee.
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-A Regular Interests, the REMIC I-B Regular Interests and the
REMIC I-C Regular Interests for the benefit of the Class R-II Interest and REMIC
II (as holder of the REMIC I-A
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Regular Interests, the REMIC I-B Regular Interests and the REMIC I-C Regular
Interests). The Trustee acknowledges receipt of the REMIC I-A Regular Interests,
the REMIC I-B Regular Interests and the REMIC I-C 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 Class R-II Interest and REMIC II (as holder of the
REMIC I-A Regular Interests, the REMIC I-B Regular Interests and the REMIC I-C
Regular Interests). The rights of the Class R-II Interest and REMIC II (as
holder of the REMIC I-A Regular Interests, the REMIC I-B Regular Interests and
the REMIC I-C Regular Interests) to receive distributions from the proceeds of
REMIC II in respect of the Class R-II Interest and REMIC II Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-II Interest and the REMIC II Regular Interests, shall be as set forth in this
Agreement.
SECTION 2.08. Conveyance of the REMIC II Regular Interests;
Acceptance of REMIC III by the Trustee.
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 II Regular Interests for the benefit of the Class R-X
Certificateholders and REMIC III (as holder of the REMIC II Regular Interests).
The Trustee acknowledges receipt of the REMIC II 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 Class R-X Certificateholders and REMIC III (as holder
of the REMIC II Regular Interests). The rights of the Class R-X
Certificateholders and REMIC III (as holder of the REMIC II Regular Interests)
to receive distributions from the proceeds of REMIC III in respect of the Class
R-X Certificates and REMIC III Certificates, respectively, and all ownership
interests evidenced or constituted by the Class R-X Certificates and the REMIC
III Certificates, shall be as set forth in this Agreement.
SECTION 2.09. Issuance of Residual Certificates.
The Trustee acknowledges the assignment to it of the REMIC
Regular Interests and, concurrently therewith and in exchange therefor, pursuant
to the written request of the Depositor executed by an officer of the Depositor,
the Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the Residual Certificates in authorized denominations.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer.
(a) Unless otherwise specified, all references to actions to
be taken or previously taken by "the Servicer" under this Article III
or any other provision of this Agreement with respect to a Mortgage
Loan or Mortgage Loans or with respect to an REO Property or REO
Properties shall be to actions to be taken or previously taken by each
Servicer with respect to a Mortgage Loan or Mortgage Loans serviced
thereby or with respect to an REO Property or REO Properties
administered thereby. Furthermore, unless otherwise specified, all
references to actions to be taken or previously taken by "the Servicer"
under this Article III or any other provision of this Agreement with
respect to "the Collection Account," "the Servicing Account" or "the
REO Account" shall be to actions to be taken or previously taken by
each Servicer with respect to the Collection Account, the Servicing
Account or the REO Account to be established and maintained thereby.
Consistent with the foregoing, but only insofar as the context so
permits, this Article III is to be read with respect to each Servicer
as if such Servicer alone was servicing and administering its
respective Mortgage Loans hereunder.
(b) The Servicer shall service and administer the Mortgage
Loans on behalf of the Trust Fund and in the best interests of and for
the benefit of the Certificateholders and the Certificate Insurer (as
determined by the Servicer in its reasonable judgment) in accordance
with the terms of this Agreement and the respective Mortgage Loans and,
to the extent consistent with such terms, in the same manner in which
it services and administers similar mortgage loans for its own
portfolio, giving due consideration to customary and usual standards of
practice of mortgage lenders and loan servicers administering similar
mortgage loans but without regard to:
(i) any relationship that the Servicer, any Sub-Servicer or
any Affiliate of the Servicer or any Sub-Servicer may have with the
related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or
Servicing Advances; or
(iv) the Servicer's or any Sub-Servicer's right to receive
compensation for its services hereunder or with respect to any
particular transaction.
To the extent consistent with the foregoing, the Servicer (a)
shall seek to maximize the timely and complete recovery of principal and
interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to
waive) a Prepayment Charge only under the following circumstances: (i) such
waiver is standard and customary in servicing similar Mortgage Loans, (ii) such
waiver relates to a default
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or a reasonably foreseeable default and would, in the reasonable judgment of the
Servicer, maximize recovery of total proceeds taking into account the value of
such Prepayment Charge and the related Mortgage Loan, (iii) the collection of
such Prepayment Charge would be in violation of applicable laws or (iv) the
Servicer has not been provided with sufficient information to enable it to
collect the Prepayment Charge. If a Prepayment Charge is waived as permitted by
meeting the standard described in clause (iii) or (iv) above, then the Servicer
shall enforce the Trustee's rights under the Mortgage Loan Purchase Agreement
including the obligation of the Seller to pay the amount of such waived
Prepayment Charge to the Servicer for deposit in the Collection Account for the
benefit of the Holders of the Class P Certificates.
Subject only to the above-described servicing standards and
the terms of this Agreement and of the respective Mortgage Loans, the Servicer
shall have full power and authority, acting alone or through Sub-Servicers as
provided in Section 3.02, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, the Servicer in its
own name or in the name of a Sub-Servicer is hereby authorized and empowered by
the Trustee when the Servicer believes it appropriate in its best judgment in
accordance with the servicing standards set forth above, to execute and deliver,
on behalf of the Trust Fund, the Certificateholders and the Trustee or any of
them, and upon written notice to the Trustee, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans and the
Mortgaged Properties and to institute foreclosure proceedings or obtain a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and to hold or cause to be held title to such properties, on behalf of the
Trustee and Certificateholders, and to market, sell and transfer title of REO
Properties held in the name of the Trust Fund to third party purchasers upon
terms and conditions deemed reasonable by the Servicer, to bring or respond to
civil actions or complaints (in its own name or that of the Trust Fund and to
execute any other document necessary or appropriate to enable the Servicer to
carry out its duties. The Servicer shall service and administer the Mortgage
Loans in accordance with applicable state and federal law and shall provide to
the Mortgagors any reports required to be provided to them thereby. The Servicer
shall also comply in the performance of this Agreement with all reasonable rules
and requirements of each insurer under any standard hazard insurance policy.
Subject to Section 3.17, the Trustee shall execute, at the written request of
the Servicer, and furnish to the Servicer and any Sub-Servicer any special or
limited powers of attorney and other documents necessary or appropriate to
enable the Servicer or any Sub-Servicer to carry out their servicing and
administrative duties hereunder and the Trustee shall not be liable for the
actions of the Servicer or any Sub-Servicers under such powers of attorney.
Subject to Section 3.09 hereof, in accordance with the
standards of the preceding paragraph, the Servicer shall advance or cause to be
advanced funds as necessary for the purpose of effecting the timely payment of
taxes and assessments on the Mortgaged Properties, which advances shall be
Servicing Advances reimbursable in the first instance from related collections
from the Mortgagors pursuant to Section 3.09, and further as provided in Section
3.11. Any cost incurred by the Servicer or by Sub-Servicers in effecting the
timely payment of taxes and assessments on a Mortgaged Property shall not, for
the purpose of calculating distributions to Certificateholders, be added to the
unpaid principal balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit.
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Notwithstanding anything in this Agreement to the contrary,
the Servicer may not make any future advances with respect to a Mortgage Loan
(except as provided in Section 4.03) and the Servicer shall not (i) permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Rate, reduce or increase the principal balance (except for (A) a reduction of
interest payments resulting from the application of the Relief Act or any
similar state statutes or (B) reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (unless, as
provided in Section 3.07, the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable) or (ii) permit any modification, waiver or amendment of any term of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or Treasury regulations
promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a
REMIC under the Code or the imposition of any tax on "prohibited transactions"
or "contributions after the startup date" under the REMIC Provisions.
The Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release the Servicer
from the responsibilities or liabilities arising under this Agreement.
SECTION 3.02. Sub-Servicing Agreements Between Servicer and
Sub-Servicers.
(a) The Servicer may enter into Sub-Servicing Agreements with
Sub-Servicers for the servicing and administration of the Mortgage Loans;
provided, however, that (i) such agreements would not result in a withdrawal or
a downgrading by any Rating Agency of the rating on any Class of Certificates
(without regard to the Policy) as evidenced by a letter to that effect delivered
to the Depositor, the Trustee, each Servicer, the Certificate Insurer and the
Guarantor; and (ii) the Controlling Person (as provided in Section 1.03) shall
have consented to such Sub-Servicing Agreements (which consent shall not be
unreasonably withheld) with Sub-Servicers, for the servicing and administration
of the Mortgage Loans. The Trustee is hereby authorized to acknowledge, at the
request of the Servicer, any Sub-Servicing Agreement that, based on an Officers'
Certificate of the Servicer delivered to the Trustee (upon which the Trustee can
conclusively rely), meets the requirements applicable to Sub-Servicing
Agreements set forth in this Agreement and that is otherwise permitted under
this Agreement.
Each Sub-Servicer shall be (i) authorized to transact business
in the state or states where the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the
Sub-Servicer to perform its obligations hereunder and under the Sub-Servicing
Agreement and (ii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer. Each
Sub-Servicing Agreement must impose on the Sub-Servicer requirements conforming
to the provisions set forth in Section 3.08 and provide for servicing of the
Mortgage Loans consistent with the terms of this Agreement. The Servicer will
examine each Sub-Servicing Agreement and will be familiar with the terms
thereof. The terms of any Sub- Servicing Agreement will not be inconsistent with
any of the provisions of this Agreement. The Servicer and the Sub-Servicers may
enter into and make amendments to the Sub-Servicing Agreements or enter into
different forms of Sub-Servicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of this Agreement, and that no such amendment or different form shall
be made or entered into which could be reasonably expected to be materially
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adverse to the interests of the Certificateholders or the Certificate Insurer
without the consent of the Holders of Certificates entitled to at least 66% of
the Voting Rights or the Certificate Insurer; provided, further, that the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights or the Certificate Insurer shall not be required (i) to cure any
ambiguity or defect in a Sub-Servicing Agreement, (ii) to correct, modify or
supplement any provisions of a Sub-Servicing Agreement, or (iii) to make any
other provisions with respect to matters or questions arising under a
Sub-Servicing Agreement, which, in each case, shall not be inconsistent with the
provisions of this Agreement. Any variation without the consent of the Holders
of Certificates entitled to at least 66% of the Voting Rights or the Certificate
Insurer from the provisions set forth in Section 3.08 relating to insurance or
priority requirements of Sub-Servicing Accounts, or credits and charges to the
Sub-Servicing Accounts or the timing and amount of remittances by the
Sub-Servicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
Trustee, the Certificate Insurer and the Guarantor copies of all Sub-Servicing
Agreements, and any amendments or modifications thereof, promptly upon the
Servicer's execution and delivery of such instruments.
(b) As part of its servicing activities hereunder, the
Servicer, for the benefit of the Trustee, the Certificateholders and the
Certificate Insurer, shall enforce the obligations of each Sub- Servicer under
the related Sub-Servicing Agreement, including, without limitation, any
obligation of a Sub- Servicer to make advances in respect of delinquent payments
as required by a Sub-Servicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements, 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 Servicer, in its good
faith business judgment, would require were it the owner of the related Mortgage
Loans. The Servicer shall pay the costs of enforcing the obligations of a
Sub-Servicer at its own expense, and shall be reimbursed therefor only (i) from
a general recovery resulting from such enforcement, to the extent, if any, that
such recovery exceeds all amounts due in respect of the related Mortgage Loans,
or (ii) from a specific recovery of costs, expenses or attorneys' fees against
the party against whom such enforcement is directed.
SECTION 3.03. Successor Sub-Servicers.
The Servicer, with the consent of the Controlling Person (as
provided in Section 1.04), shall be entitled to terminate any Sub-Servicing
Agreement and the rights and obligations of any Sub-Servicer pursuant to any
Sub-Servicing Agreement in accordance with the terms and conditions of such Sub-
Servicing Agreement. In the event of termination of any Sub-Servicer, all
servicing obligations of such Sub- Servicer shall be assumed simultaneously by
the Servicer without any act or deed on the part of such Sub- Servicer or the
Servicer, and the Servicer either shall service directly the related Mortgage
Loans or shall enter into a Sub-Servicing Agreement with a successor
Sub-Servicer which qualifies under Section 3.02.
Any Sub-Servicing Agreement shall include the provision that
such agreement may be immediately terminated by the Trustee (if the Trustee is
acting as a Servicer) without fee, in accordance with the terms of this
Agreement, in the event that the Servicer (or the Trustee, if it is then acting
as a Servicer) shall, for any reason, no longer be the Servicer (including
termination due to a Servicer Event of Default).
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SECTION 3.04. Liability of the Servicer.
Notwithstanding any Sub-Servicing Agreement or the provisions
of this Agreement relating to agreements or arrangements between the Servicer
and a Sub-Servicer or reference to actions taken through a Sub-Servicer or
otherwise, the Servicer shall remain obligated and primarily liable to the
Trustee, the Certificateholders and the Certificate Insurer for the servicing
and administering of the Mortgage Loans in accordance with the provisions of
Section 3.01 without diminution of such obligation or liability by virtue of
such Sub-Servicing Agreements or arrangements or by virtue of indemnification
from the Sub-Servicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering the
Mortgage Loans. The Servicer shall be entitled to enter into any agreement with
a Sub- Servicer for indemnification of the Servicer by such Sub-Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
SECTION 3.05. No Contractual Relationship Between
Sub-Servicers, the Trustee, the Certificate
Insurer, the Guarantor or the
Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such shall be deemed to be between the Sub-Servicer and the
Servicer alone, and the Trustee and the Certificateholders, the Certificate
Insurer and the Guarantor shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to the
Sub-Servicer except as set forth in Section 3.06. The Servicer shall be solely
liable for all fees owed by it to any Sub-Servicer, irrespective of whether the
Servicer's compensation pursuant to this Agreement is sufficient to pay such
fees.
SECTION 3.06. Assumption or Termination of Sub-Servicing
Agreements by the Trustee.
In the event the Servicer shall for any reason no longer be
the Servicer (including by reason of the occurrence of a Servicer Event of
Default), the Trustee, its designee or other successor Servicer shall thereupon
assume all of the rights and obligations of the Servicer under each
Sub-Servicing Agreement that the Servicer may have entered into, unless the
Trustee, such designee or other successor Servicer elects to terminate any
Sub-Servicing Agreement in accordance with its terms as provided in Section
3.03. Upon such assumption, the Trustee, its designee or the successor Servicer
for the Trustee appointed pursuant to Section 7.02 shall be deemed, subject to
Section 3.03, to have assumed all of the Servicer's interest therein and to have
replaced the Servicer as a party to each Sub-Servicing Agreement to the same
extent as if each Sub-Servicing Agreement had been assigned to the assuming
party, except that (i) the Servicer shall not thereby be relieved of any
liability or obligations under any Sub-Servicing Agreement that arose before it
ceased to be the Servicer and (ii) none of the Trustee, its designee or any
successor Servicer shall be deemed to have assumed any liability or obligation
of the Servicer that arose before it ceased to be the Servicer.
The Servicer at its expense shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
each Sub-Servicing Agreement and the Mortgage Loans then being
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serviced and an accounting of amounts collected and held by or on behalf of it,
and otherwise use its best efforts to effect the orderly and efficient transfer
of the Sub-Servicing Agreements to the assuming party.
The Servicing Fee payable to the Trustee or other successor
Servicer shall be payable from payments received on the Mortgage Loans in the
amount and in the manner set forth in this Agreement.
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
The Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement and
the terms and provisions of any applicable insurance policies, follow such
collection procedures as it would follow with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Consistent with
the foregoing, the Servicer may in its discretion (i) waive any late payment
charge or, if applicable, any penalty interest, or (ii) extend the due dates for
the Monthly Payments due on a Mortgage Note for a period of not greater than 180
days; provided, however, that any extension pursuant to clause (ii) above shall
not affect the amortization schedule of any Mortgage Loan for purposes of any
computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (ii) above, the Servicer shall make timely
advances on such Mortgage Loan during such extension pursuant to Section 4.03
and in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangement. Notwithstanding the
foregoing, in the event that any Mortgage Loan is in default or, in the judgment
of the Servicer, such default is reasonably foreseeable, the Servicer,
consistent with the standards set forth in Section 3.01, may also waive, modify
or vary any term of such Mortgage Loan (including modifications that would
change the Mortgage Rate, forgive the payment of principal or interest or extend
the final maturity date of such Mortgage Loan), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan (such payment, a "Short Pay-off"), or consent
to the postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor. If the Class C-I Certificates are no longer
outstanding, GMAC shall not take any action pursuant to the preceding sentence
with respect to a Group I Mortgage Loan without obtaining the prior written
consent of the Guarantor to such modification. GMAC shall submit to the
Guarantor with its request for consent, such information related to the proposed
modification as can be expected to be needed by the Guarantor to evaluate GMAC's
request, including the terms of the proposed modification and the reasons for
GMAC's decision that such Group I Mortgage Loan should be modified. The
Guarantor shall be deemed to have consented to GMAC's request in the event that
the Guarantor does not provide GMAC with either its written consent to such
requested modification or written notice of its objection to such modification
within five Business Days of its receipt of GMAC's request. Requests for
modification shall be sent to the Guarantor at: Xxxxxx Xxx, Special Products
Group, Mail Stop 5H-5W-03, 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Director. With respect to each Group I Mortgage Loan which is
modified with the consent of the Guarantor, GMAC shall give written notice to
the Certificate Insurer to the address set forth in Section 11.05 and to the
Guarantor to the following address: Xxxxxx Mae, Special Products Group, Mail
Stop 5H- 5W-03, 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Director. Such notice shall be delivered within thirty Business Days following
such modification and shall include information with respect to the
modification, including, without limitation, the interest rate, the principal
balance and the maturity date
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of such Group I Mortgage Loan before and after such modification.
SECTION 3.08. Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage
Loan pursuant to a Sub- Servicing Agreement, the Sub-Servicer will be required
to establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall
comply with all requirements of this Agreement relating to the Collection
Account. The Sub-Servicer shall deposit in the clearing account in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Sub-Servicer's receipt thereof, all
proceeds of Mortgage Loans received by the Sub-Servicer less its servicing
compensation to the extent permitted by the Sub-Servicing Agreement, and shall
thereafter deposit such amounts in the Sub-Servicing Account, in no event more
than two Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Collection Account or remit such
proceeds to the Servicer for deposit in the Collection Account not later than
two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Servicer shall be deemed to have
received payments on the Mortgage Loans when the Sub-Servicer receives such
payments.
SECTION 3.09. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts.
The Servicer shall establish and maintain, or cause to be
established and maintained, one or more accounts (the "Servicing Accounts"),
into which all collections from the Mortgagors (or related advances from
Sub-Servicers) for the payment of taxes, assessments, hazard insurance premiums
and comparable items for the account of the Mortgagors ("Escrow Payments") shall
be deposited and retained. Servicing Accounts shall be Eligible Accounts. The
Servicer shall deposit in the Servicing Account all Escrow Payments collected on
account of the Mortgage Loans within two Business Days of the Servicer's receipt
thereof, for the purpose of effecting the payment of any such items as required
under the terms of this Agreement. Withdrawals of amounts from a Servicing
Account may be made only to (i) effect payment of taxes, assessments, hazard
insurance premiums, and comparable items in a manner and at a time that assures
that the lien priority of the Mortgage is not jeopardized (or, with respect to
the payment of taxes, in a manner and at a time that avoids the loss of the
Mortgaged Property due to a tax sale or the foreclosure as a result of a tax
lien); (ii) reimburse the Servicer (or a Sub-Servicer to the extent provided in
the related Sub-Servicing Agreement) out of related collections for any advances
made pursuant to Section 3.01 (with respect to taxes and assessments) and
Section 3.14 (with respect to hazard insurance); (iii) refund to Mortgagors any
sums as may be determined to be overages; (iv) pay interest, if required and as
described below, to Mortgagors on balances in the Servicing Account; or (v)
clear and terminate the Servicing Account at the termination of the Servicer's
obligations and responsibilities in respect of the Mortgage Loans under this
Agreement in accordance with Article IX. As part of its servicing duties, the
Servicer or Sub-Servicers shall pay to the Mortgagors interest on funds in the
Servicing Accounts, to the extent required by law and, to the extent that
interest earned on funds in the Servicing Accounts is insufficient, to pay such
interest from its or their own funds, without any reimbursement therefor.
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SECTION 3.10. Collection Account and Distribution Account.
(a) On behalf of the Trust Fund, the Servicer shall establish
and maintain, or cause to be established and maintained, one or more
accounts (such account or accounts, the "Collection Account"), held in
trust for the benefit of the Trustee, the Certificateholders and the
Certificate Insurer. On behalf of the Trust Fund, the Servicer shall
deposit or cause to be deposited in the Collection Account, in no event
more than two Business Days after the Servicer's receipt thereof, as
and when received or as otherwise required hereunder, the following
payments and collections received or made by it subsequent to the Cut-
off Date (other than in respect of principal or interest on the related
Mortgage Loans due on or before the Cut-off Date), or payments (other
than Principal Prepayments) received by it on or prior to the Cut-off
Date but allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds, Subsequent Recoveries and
Liquidation Proceeds (other than proceeds collected in respect of any
particular REO Property and amounts paid in connection with a purchase
of Mortgage Loans and REO Properties pursuant to Section 9.01);
(iv) any amounts required to be deposited pursuant to Section
3.12 in connection with any losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer
pursuant to the second paragraph of Section 3.14(a) in respect of any
blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or
purchased in accordance with Section 2.03, Section 3.16 or Section
9.01;
(vii) all amounts required to be deposited in connection with
shortfalls in principal amount of Qualified Substitute Mortgage Loans
pursuant to Section 2.03; and
(viii) all Prepayment Charges collected by the Servicer in
connection with the Principal Prepayment of any of the Mortgage Loans.
The foregoing requirements for deposit in the Collection
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, modification or assumption fees, or insufficient funds charges need not
be deposited by the Servicer in the Collection Account and may be retained by
the Servicer as additional compensation. In the event the Servicer shall deposit
in the Collection Account any amount not required to be deposited
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therein, it may at any time withdraw such amount from the Collection Account,
any provision herein to the contrary notwithstanding.
(b) On behalf of the Trust Fund, the Trustee shall establish
and maintain one or more accounts (such account or accounts, the
"Distribution Account"), held in trust for the benefit of the Trustee,
the Trust Fund, the Certificateholders and the Certificate Insurer. On
behalf of the Trust Fund, the Servicer shall deliver to the Trustee in
immediately available funds for deposit in the Distribution Account by
3:00 p.m. New York time on the Servicer Remittance Date, that portion
of the Available Distribution Amount (calculated without regard to the
references in clause (2) of the definition thereof to amounts that may
be withdrawn from the Distribution Account) for the related
Distribution Date then on deposit in the Collection Account and the
amount of all Prepayment Charges collected by the Servicer in
connection with the Principal Prepayment of any of the Mortgage Loans
then on deposit in the Collection Account and the amount of any funds
reimbursable to an Advancing Person pursuant to Section 3.26.
(c) Funds in the Collection Account and the Distribution
Account may be invested in Permitted Investments in accordance with the
provisions set forth in Section 3.12. The Servicer shall give notice to
the Trustee, the Guarantor and the Certificate Insurer of the location
of the Collection Account maintained by it when established and prior
to any change thereof. The Trustee shall give notice to the Servicer,
the Depositor, the Guarantor and the Certificate Insurer of the
location of the Distribution Account when established and prior to any
change thereof.
(d) Funds held in the Collection Account at any time may be
delivered by the Servicer to the Trustee for deposit in an account
(which may be the Distribution Account and must satisfy the standards
for the Distribution Account as set forth in the definition thereof)
and for all purposes of this Agreement shall be deemed to be a part of
the Collection Account; provided, however, that the Trustee shall have
the sole authority to withdraw any funds held pursuant to this
subsection (d). In the event the Servicer shall deliver to the Trustee
for deposit in the Distribution Account any amount not required to be
deposited therein, it may at any time request in writing that the
Trustee withdraw such amount from the Distribution Account and remit to
it any such amount, any provision herein to the contrary
notwithstanding. In addition, the Servicer shall deliver to the Trustee
from time to time for deposit, and the Trustee shall so deposit, in the
Distribution Account:
(i) any P&I Advances, as required pursuant to Section 4.03;
(ii) any amounts required to be deposited pursuant to Section
3.23(d) or (f) in connection with any REO Property;
(iii) any amounts to be paid in connection with a purchase of
Mortgage Loans and REO Properties pursuant to Section 9.01; and
(iv) any amounts required to be deposited pursuant to Section
3.24 in connection with any Prepayment Interest Shortfall.
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(e) [Reserved].
(f) The Servicer shall deposit in the Collection Account or
Distribution Account, as the case may be, any amounts required to be deposited
pursuant to Section 3.12(b) in connection with losses realized on Permitted
Investments with respect to funds held in the Collection Account or Distribution
Account, respectively.
(g) On the Closing Date, the Depositor shall deposit into the
Distribution Account an amount equal to $3,181,952.13. The Trustee shall
allocate $2,272,852.13 to the Group I Principal Remittance Amount, $11,237.42 to
the Group I Interest Remittance Amount, $543,850.00 to the Group III-A Principal
Remittance Amount, $2,850.38 to the Group III-A Interest Remittance Amount,
$365,250.00 to the Group III-B Principal Remittance Amount and $2,224.06 to the
Group III-B Interest Remittance Amount, and shall distribute such amount to the
Certificates on the first Distribution Date pursuant to Section 4.01(a).
SECTION 3.11. Withdrawals from the Collection Account and
Distribution Account.
(a) The Servicer shall, from time to time, make withdrawals
from the Collection Account for any of the following purposes or as
described in Section 4.03:
(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be so remitted pursuant to Section
3.10(b) or permitted to be so remitted pursuant to the first sentence
of Section 3.10(d);
(ii) subject to Section 3.16(d), to reimburse the Servicer for
P&I Advances, but only to the extent of amounts received which
represent Late Collections (net of the related Servicing Fees) of
Monthly Payments on Mortgage Loans with respect to which such P&I
Advances were made in accordance with the provisions of Section 4.03;
(iii) subject to Section 3.16(d), to pay the Servicer or any
Sub-Servicer, as applicable, (a) any unpaid Servicing Fees, (b) any
unreimbursed Servicing Advances with respect to each Mortgage Loan, but
only to the extent of any Late Collections, Liquidation Proceeds and
Insurance Proceeds received with respect to such Mortgage Loan and (c)
any Nonrecoverable Servicing Advances with respect to the final
liquidation of a Mortgage Loan, but only to the extent that Late
Collections, Liquidation Proceeds and Insurance Proceeds received with
respect to such Mortgage Loan are insufficient to reimburse the
Servicer or any Sub-Servicer for Servicing Advances;
(iv) to pay to the Servicer as servicing compensation (in
addition to the Servicing Fee) on the Servicer Remittance Date any
interest or investment income earned on funds deposited in the
Collection Account;
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(v) to pay to the Servicer, the Depositor, the Originator or
the Seller, as the case may be, with respect to each Mortgage Loan that
has previously been purchased or replaced pursuant to Section 2.03 or
Section 3.16(c) all amounts received thereon subsequent to the date of
purchase or substitution, as the case may be;
(vi) to reimburse the Servicer for any P&I Advance previously
made which the Servicer has determined to be a Nonrecoverable P&I
Advance in accordance with the provisions of Section 4.03;
(vii) to reimburse the Servicer or the Depositor for expenses
incurred by or reimbursable to the Servicer or the Depositor, as the
case may be, pursuant to Section 3.02(b) and Section 6.03;
(viii) to reimburse the Servicer, the Guarantor (with respect
to the Group I-A Loans) or Trustee for expenses reasonably incurred in
connection with any breach or defect giving rise to the purchase
obligation under Section 2.03 of this Agreement, including any expenses
arising out of the enforcement of the purchase obligation;
(ix) to pay, or to reimburse the Servicer for Servicing
Advances in respect of, expenses incurred in connection with any
Mortgage Loan pursuant to Section 3.16(b); and
(x) to clear and terminate the Collection Account pursuant to
Section 9.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (ii), (iii), (iv), (v), (vi), (viii) and (ix) above.
The Servicer shall provide written notification to the Trustee, the Guarantor
and the Certificate Insurer, on or prior to the next succeeding Servicer
Remittance Date, upon making any withdrawals from the Collection Account
pursuant to subclauses (vi) and (vii) above; provided that an Officers'
Certificate in the form described under Section 4.03(d) shall suffice for such
written notification to the Trustee in respect of clause (vi) hereof.
(b) The Trustee shall, from time to time, make withdrawals
from the Distribution Account, for any of the following purposes,
without priority:
(i) to make distributions to Certificateholders, the
Certificate Insurer and the Guarantor in accordance with Section 4.01;
(ii) to pay to itself amounts to which it is entitled pursuant
to Section 8.05 or for Extraordinary Trust Fund Expenses;
(iii) to reimburse itself pursuant to Section 7.02;
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(iv) to pay any amounts in respect of taxes pursuant to
Section 10.01(g)(iii);
(v) to pay to an Advancing Person reimbursements for P&I
Advances and/or Servicing Advances pursuant to Section 3.26; and
(vi) to clear and terminate the Distribution Account pursuant
to Section 9.01.
SECTION 3.12. Investment of Funds in the Collection Account
and the Distribution Account.
(a) The Servicer may direct any depository institution
maintaining the Collection Account (for purposes of this Section 3.12,
an "Investment Account") to invest the funds in such Investment Account
in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, (i) no later than the
Business Day immediately preceding the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement,
if a Person other than the Trustee is the obligor thereon, and (ii) no
later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the Trustee is the
obligor thereon. Amounts in the Distribution Account may be held
uninvested. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Trustee for the benefit of the
Certificateholders and the Certificate Insurer. The Trustee shall be
entitled to sole possession (except with respect to investment
direction of funds held in the Collection Account and any income and
gain realized thereon) over each such investment, and any certificate
or other instrument evidencing any such investment shall be delivered
directly to the Trustee or its agent, together with any document of
transfer necessary to transfer title to such investment to the Trustee
or its nominee. In the event amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on
demand, the party with investment discretion over such Investment
Account shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by a Responsible Officer of the Trustee that such
Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account and any REO Account held by or on
behalf of the Servicer, shall be for the benefit of the Servicer and
shall be subject to its withdrawal in accordance with Section 3.11 or
Section 3.23, as applicable. The Servicer shall deposit in the
Collection Account or any REO Account, as applicable, the amount of any
loss of principal incurred in respect of any such Permitted Investment
made with funds in such accounts immediately upon realization of such
loss. All income in the nature of interest from the
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investment of funds in the Distribution Account shall be for the benefit of the
Trustee. The Trustee shall remit from its own funds for deposit into the
Distribution Account the amount of any loss incurred on Permitted Investments in
the Distribution Account, if amounts on deposit in the Distribution Account are
invested in Permitted Investments by the Trustee in the absence of direction
from another party.
(c) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee may and, subject to Section 8.01 and Section
8.02(v), upon the request of the Holders of Certificates representing more than
50% of the Voting Rights allocated to any Class of Certificates, shall take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate proceedings.
(d) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator, shareholder
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. Such compensation shall not be considered an amount that is
reimbursable or payable to the Trustee pursuant to Section 3.11 or 3.12 or
otherwise payable in respect of Extraordinary Trust Fund Expenses.
SECTION 3.13. Agreement to Appoint a Special Servicer.
(a) The Guarantor (with the consent of the Certificate
Insurer, which consent shall not be unreasonably withheld) may require
GMAC to enter into a special subservicing agreement with a servicer
with expertise in servicing delinquent mortgage loans as designated by
the Guarantor (the "Special Servicer") on or after the earliest
Distribution Date with respect to which the aggregate Certificate
Principal Balance of the Class C-I Certificates has been reduced to
zero. Such special subservicing agreement shall relate to the servicing
of only Group I-A Mortgage Loans that (x) have been delinquent in
payment with respect to three or more Monthly Payments (provided,
however, that the third such Monthly Payment shall not be deemed to be
delinquent for purposes of this clause (x) until the close of business
on the last day of the month in which such Monthly Payment first became
due) and (y) have been transferred to the Special Servicer in
accordance with this Section 3.13 and the related special subservicing
agreement (a "Specially Serviced Mortgage Loan").
(b) The special subservicing agreement shall be consistent
with the provisions of this Agreement, including but not limited to
this Section 3.13, Section 3.02(a), Section 3.02(b), and Section 3.08,
except as provided otherwise in this Section 3.13. In addition, the
special subservicing agreement shall be on terms which shall be
reasonably acceptable to the Guarantor and GMAC and shall provide, at a
minimum that:
(1) the Special Servicer shall at all times meet the
eligibility criteria described in Section 3.02(a);
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(2) the Special Servicer shall service only the Specially
Serviced Mortgage Loans in a manner consistent with the provisions with
this Agreement except as provided otherwise in the special subservicing
agreement;
(3) the Special Servicer shall use the Xxxxxx Xxx foreclosure
network (and pay the customary fees therefor) for foreclosures and
bankruptcies relating to Specially Serviced Mortgage Loans;
(4) the Special Servicer shall use the Xxxxxx Mae disposition
service (and pay the customary fees therefor) for the disposition of
REO Property related to Specially Serviced Mortgage Loans;
(5) the Special Servicer shall make Servicing Advances on the
Specially Serviced Mortgage Loans to the same extent and in the same
manner as GMAC with respect to the Group I-A Mortgage Loans pursuant to
this Agreement;
(6) the Special Servicer shall be entitled to receive the
Servicing Fee with respect to all Specially Serviced Mortgage Loans;
(7) prior to the transfer of servicing to the Special
Servicer, GMAC and the Special Servicer shall have provided all notices
relating to such transfer of servicing as required to be delivered to
the borrowers by applicable state and federal law;
(8) the Special Servicer shall indemnify GMAC and the Trustee
for any liabilities to them arising from failures of the Special
Servicer to perform its obligations according to the terms of the
subservicing agreement;
(9) GMAC shall promptly give notice thereof to the Trustee,
the Certificate Insurer and the Guarantor of the transfer of servicing
to the Special Servicer, including the loan number together with the
borrower's name and the unpaid Stated Principal Balance of the
transferred Mortgage Loan at the time of transfer;
(10) each of the respective obligations, duties, and
liabilities of GMAC and the Special Servicer (or either of them) with
respect to the servicing of the Specially Serviced Mortgage Loans that
have arisen prior to the date on which the servicing of such Specially
Serviced Mortgage Loan was transferred to the Special Servicer (the
"Effective Date"), or that arise on and after the Effective Date, under
this Agreement and the subservicing agreement and that remain
unperformed or unsatisfied shall survive any transfer of servicing;
(11) once a Group I-A Mortgage Loan becomes a Specially
Serviced Mortgage Loan, such Mortgage Loan shall remain a Specially
Serviced Mortgage Loan, and shall continue to be serviced by the
Special Servicer, until the earlier of the liquidation or other
disposition of such
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Mortgage Loan or the termination of the subservicing agreement,
regardless of delinquency status or otherwise;
(12) the Guarantor may remove the Special Servicer if the
Special Servicer at any time fails to meet any of the above criteria or
otherwise, in the judgment of the Guarantor, fails to perform according
to the terms of the subservicing agreement and the provisions of this
Section 3.13; provided that prior to any such removal the Guarantor
shall designate a successor Special Servicer meeting the requirements
of this Section 3.13, and no removal of a Special Servicer shall be
effective until a successor Special Servicer has entered into a special
subservicing agreement meeting the requirements of this Section 3.13
and agreed to assume the duties of the Special Servicer or GMAC has
undertaken such duties; and
(13) in connection with any transfer of a Group I-A Mortgage
Loan to the Special Servicer as a Specially Serviced Mortgage Loan,
GMAC shall execute any appropriate assignments or other documents
reasonable and necessary to further the prosecution of the Special
Servicer obligations under the special subservicing agreement.
SECTION 3.14. Maintenance of Hazard Insurance and Errors and
Omissions and Fidelity Coverage.
(a) Each Servicer shall cause to be maintained for each
Mortgage Loan fire insurance with extended coverage on the related Mortgaged
Property in an amount which is at least equal to the lesser of the current
principal balance of such Mortgage Loan and the amount necessary to fully
compensate for any damage or loss to the improvements that are a part of such
property on a replacement cost basis, in each case in an amount not less than
such amount as is necessary to avoid the application of any coinsurance clause
contained in the related hazard insurance policy. The Servicer shall also cause
to be maintained fire insurance with extended coverage on each REO Property in
an amount which is at least equal to the lesser of (i) the maximum insurable
value of the improvements which are a part of such property and (ii) the
outstanding principal balance of the related Mortgage Loan at the time it became
an REO Property, plus accrued interest at the Mortgage Rate and related
Servicing Advances. The Servicer will comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under any
such hazard policies. Any amounts to be collected by the Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
property subject to the related Mortgage or amounts to be released to the
Mortgagor in accordance with the procedures that the Servicer would follow in
servicing loans held for its own account, subject to the terms and conditions of
the related Mortgage and Mortgage Note) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.11, if received in respect
of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to
Section 3.23, if received in respect of an REO Property. Any cost incurred by
the Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit. It is understood and agreed that no earthquake
or other additional insurance is to be required of any Mortgagor other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged Property
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or REO Property is at any time in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards and
flood insurance has been made available, the Servicer will cause to be
maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the unpaid principal balance of
the related Mortgage Loan and (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program (assuming that the area in which such Mortgaged Property is located is
participating in such program).
In the event that the Servicer shall obtain and maintain a
blanket policy with an insurer having a General Policy Rating of A:X or better
in Best's Key Rating Guide (or such other rating that is comparable to such
rating) insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first two sentences of this Section 3.14, it being understood and agreed that
such policy may contain a deductible clause, in which case the Servicer shall,
in the event that there shall not have been maintained on the related Mortgaged
Property or REO Property a policy complying with the first two sentences of this
Section 3.14, and there shall have been one or more losses which would have been
covered by such policy, deposit to the Collection Account from its own funds the
amount not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as administrator and servicer of the
Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself,
the Trustee and Certificateholders, claims under any such blanket policy in a
timely fashion in accordance with the terms of such policy.
(b) Each Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Xxx if it were the purchaser of the Mortgage Loans,
unless the Servicer has obtained a waiver of such requirements from Xxxxxx Mae.
The Servicer shall also maintain a fidelity bond in the form and amount that
would meet the requirements of Xxxxxx Xxx, unless the Servicer has obtained a
waiver of such requirements from Xxxxxx Mae. The Servicer shall be deemed to
have complied with this provision if an Affiliate of the Servicer has such
errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends to
the Servicer. The Servicer shall provide the Guarantor with any such errors and
omissions policy and fidelity bond and any such errors and omissions policy and
fidelity bond shall by its terms not be cancelable without thirty days prior
written notice to the Trustee. The Servicer shall also cause each Sub-Servicer
to maintain a policy of insurance covering errors and omissions and a fidelity
bond which would meet such requirements.
SECTION 3.15. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
Each Servicer will, to the extent it has knowledge of any
conveyance or prospective conveyance of any Mortgaged Property by any Mortgagor
(whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains or is to remain liable under the Mortgage Note and/or the
Mortgage), exercise its rights to accelerate the maturity of such Mortgage Loan
under the "due- on-sale" clause, if any, applicable thereto; provided, however,
that the Servicer shall not be required to
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take such action if in its sole business judgment the Servicer believes it is
not in the best interests of the Trust Fund and shall not exercise any such
rights if prohibited by law from doing so. If the Servicer reasonably believes
it is unable under applicable law to enforce such "due-on-sale" clause, or if
any of the other conditions set forth in the proviso to the preceding sentence
apply, the Servicer will enter into an assumption and modification agreement
from or with the person to whom such property has been conveyed or is proposed
to be conveyed, pursuant to which such person becomes liable under the Mortgage
Note and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Each Servicer is also authorized to enter into a substitution of
liability agreement with such person, pursuant to which the original Mortgagor
is released from liability and such person is substituted as the Mortgagor and
becomes liable under the Mortgage Note, provided that no such substitution shall
be effective unless such person satisfies the underwriting criteria of the
Originator and has a credit risk rating at least equal to that of the original
Mortgagor. In connection with any assumption or substitution, the Servicer shall
apply the Originator's underwriting standards and follow such practices and
procedures as shall be normal and usual in its general mortgage servicing
activities and as it applies to other mortgage loans owned solely by it. The
Servicer shall not take or enter into any assumption and modification agreement,
however, unless (to the extent practicable in the circumstances) it shall have
received confirmation, in writing, of the continued effectiveness of any
applicable hazard insurance policy. Any fee collected by the Servicer in respect
of an assumption, modification or substitution of liability agreement shall be
retained by the Servicer as additional servicing compensation. In connection
with any such assumption, no material term of the Mortgage Note (including but
not limited to the related Mortgage Rate and the amount of the Monthly Payment)
may be amended or modified, except as otherwise required pursuant to the terms
thereof. The Servicer shall notify the Trustee, the Certificate Insurer and the
Guarantor that any such substitution, modification or assumption agreement has
been completed by forwarding to the Trustee (with a copy to the Certificate
Insurer and the Guarantor) the executed original of such substitution,
modification or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. If the Class C-I Certificates are no longer
outstanding, GMAC shall not take or enter into any substitution, assumption or
modification agreement with respect to a Group I Mortgage Loan without obtaining
the prior written consent of the Guarantor to such substitution, assumption or
modification agreement. GMAC shall submit to the Guarantor with its request for
consent, such information related to the proposed substitution, assumption or
modification agreement as can be expected to be needed by the Guarantor to
evaluate GMAC's request, including the terms of the proposed substitution,
assumption or modification and the reasons for GMAC's decision that such
substitution, assumption or modification agreement should be taken or entered
into with respect to such Group I Mortgage Loan. The Guarantor shall be deemed
to have consented to GMAC's request in the event that the Guarantor does not
provide GMAC with either its written consent to such requested substitution,
assumption or modification agreement or written notice of its objection to such
substitution, assumption or modification agreement within five Business Days of
its receipt of the GMAC's request. Such requests shall be sent to the Guarantor
at: Xxxxxx Xxx, Special Products Group, Mail Stop 5H-5W-03, 00000 Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Director. With respect to each
substitution, assumption or modification agreement which is entered into with
the consent of the Guarantor, GMAC shall give written notice to the Certificate
Insurer to the addresses set forth in Section 11.05, to the Guarantor to the
following address: Xxxxxx Mae, Special Products Group, Mail Stop 5H-5W-03, 00000
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Director. Such notice
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shall be delivered within thirty Business Days following the date of such
substitution, assumption or modification agreement.
Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption of
a Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatever. For purposes of this Section 3.15, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
SECTION 3.16. Realization Upon Defaulted Mortgage Loans.
(a) The Servicer shall exercise its discretion, consistent
with customary servicing procedures and the terms of this Agreement, with
respect to the enforcement and servicing of defaulted Mortgage Loans in such
manner as will maximize the receipt of principal and interest with respect
thereto, including but not limited to the sale of such Mortgage Loan to a third
party, the modification of such Mortgage Loan, or foreclosure upon the related
Mortgaged Property and disposition thereof.
In furtherance of the foregoing, the Servicer shall use its
best efforts, consistent with Accepted Servicing Practices, to foreclose upon or
otherwise comparably convert the ownership of 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
pursuant to Section 3.07. The Servicer shall be responsible for all costs and
expenses incurred by it in any such proceedings; provided, however, that such
costs and expenses will be recoverable as Servicing Advances by the Servicer as
contemplated in Section 3.11 and Section 3.23. The foregoing is subject to the
provision that, in any case in which Mortgaged Property shall have suffered
damage from an Uninsured Cause, the Servicer shall not be required to expend its
own funds toward the restoration of such property unless it shall determine in
its discretion that such restoration will increase the proceeds of liquidation
of the related Mortgage Loan after reimbursement to itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section
3.16 or any other provision of this Agreement, with respect to any Mortgage Loan
as to which the Servicer has received actual notice of, or has actual knowledge
of, the presence of any toxic or hazardous substance on the related Mortgaged
Property, the Servicer shall not, on behalf of the Trust Fund either (i) obtain
title to such Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, or (ii) otherwise acquire possession of, or take any other action
with respect to, such Mortgaged Property, if, as a result of any such action,
the Trustee, the Trust Fund or the Certificateholders would be considered to
hold title to, to be a "mortgagee-in- possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time, or any comparable law, unless the Servicer has also previously
determined, based on its reasonable judgment and a report prepared by an
Independent Person who regularly conducts environmental audits using customary
industry standards, that:
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(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith; and
(2) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based
materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any federal, state or
local law or regulation, or that if any such materials are present for
which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect
to the affected Mortgaged Property.
Notwithstanding the foregoing, if such environmental audit
reveals, or if the Servicer has knowledge or notice, that the Mortgaged Property
securing such Mortgage Loan contains such wastes or substances or is within one
mile of the site of such wastes or substances, the Servicer shall not foreclose
or accept a deed in lieu of foreclosure without the prior written consent of the
Guarantor (with respect to the Group I Mortgage Loans) and the Certificate
Insurer.
The cost of the environmental audit report contemplated by
this Section 3.16 shall be advanced by the Servicer, subject to the Servicer's
right to be reimbursed therefor from the Collection Account as provided in
Section 3.11(a)(ix), such right of reimbursement being prior to the rights of
Certificateholders, the Certificate Insurer and the Guarantor to receive any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans.
If the Servicer determines, as described above, that it is in
the best economic interest of the Trust Fund to take such actions as are
necessary to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes or petroleum-based materials affecting any such Mortgaged Property, then
the Servicer shall take such action as it deems to be in the best economic
interest of the Trust Fund; provided that any amounts disbursed by the Servicer
pursuant to this Section 3.16(b) shall constitute Servicing Advances, subject to
Section 4.03(d). The cost of any such compliance, containment, cleanup or
remediation shall be advanced by the Servicer, subject to the Servicer's right
to be reimbursed therefor from the Collection Account as provided in Section
3.11(a)(iii) and (a)(ix), such right of reimbursement being prior to the rights
of Certificateholders, the Certificate Insurer and the Guarantor to receive any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans.
(c) Each Servicer may at its option purchase from REMIC I-A,
REMIC I-B or REMIC I-C, as applicable, any Mortgage Loan or related REO Property
that is 90 days or more delinquent, which the Servicer determines in good faith
will otherwise become subject to foreclosure proceedings (evidence of such
determination to be delivered in writing to the Trustee, in form and substance
satisfactory to the Trustee prior to purchase), at a price equal to the Purchase
Price; provided, however, that the Servicer shall purchase any such Mortgage
Loans or related REO Properties on the basis of delinquency, purchasing the most
delinquent Mortgage Loans or related REO Properties first. In the event
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GMAC fails to purchase from REMIC I-A any such Group I Mortgage Loan or related
REO Property, the Guarantor shall be entitled to purchase such Group I Mortgage
Loan or related REO Property at any time thereafter. The Purchase Price for any
Mortgage Loan or related REO Property purchased hereunder shall be deposited in
the Collection Account, and the Trustee, upon receipt of written certification
from the Servicer of such deposit, shall release or cause to be released to the
Servicer or the Guarantor, as applicable, the related Mortgage File and the
Trustee shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as the Servicer or the Guarantor, as applicable,
shall furnish and as shall be necessary to vest in the Servicer or the Guarantor
title to any Mortgage Loan or related REO Property released pursuant hereto.
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds or Liquidation Proceeds, in respect of any Mortgage Loan,
will be applied in the following order of priority: first, to reimburse the
Servicer or any Sub-Servicer for any related unreimbursed Servicing Advances and
P&I Advances, pursuant to Section 3.11(a)(ii) or (a)(iii); second, to accrued
and unpaid interest on the Mortgage Loan, to the date of the Final Recovery
Determination, or to the Due Date prior to the Distribution Date on which such
amounts are to be distributed if not in connection with a Final Recovery
Determination; and third, as a recovery of principal of the Mortgage Loan. If
the amount of the recovery so allocated to interest is less than the full amount
of accrued and unpaid interest due on such Mortgage Loan, the amount of such
recovery will be allocated by the Servicer as follows: first, to unpaid
Servicing Fees; and second, to the balance of the interest then due and owing.
The portion of the recovery so allocated to unpaid Servicing Fees shall be
reimbursed to the Servicer or any Sub-Servicer pursuant to Section 3.11(a)(iii).
(e) Furthermore, the Holder of the Class R-X Certificates will
have the option to purchase, at any one time, 1.00% (and in any case, at least 5
Mortgage Loans) of the Mortgage Loans, by aggregate Stated Principal Balance of
the Mortgage Loans as of such date, at a purchase price equal to the greater of
(A) the aggregate Purchase Price of such Mortgage Loans and (B) the aggregate
fair market value of such Mortgage Loans. The Mortgage Loans that may be
purchased by the Holder of the Class R Certificates pursuant to this paragraph
will be selected by the Servicer in its sole discretion. If at any time the
Holder of the Class R-X Certificates exercises such option, it shall immediately
notify or cause to be notified the Trustee by a certification in the form of
Exhibit E (which certification shall include a statement to the effect that all
amounts required to be deposited in the Collection Account pursuant to Section
3.10 have been or will be so deposited) of a Servicing Officer and shall request
delivery to it of the Mortgage File. Upon receipt of such certification and
request, the Trustee shall promptly release the related Mortgage Files to the
Holder of the Class R-X Certificates. Any tax on "prohibited transactions" (as
defined in Section 860F(a)(2) of the Code) imposed on any REMIC created
hereunder related to the exercise of the option provided by this paragraph (e)
shall in no event be payable by the Trustee, the Guarantor, the Certificate
Insurer or the Trust Fund.
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SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Servicer of a notification that payment in full shall be escrowed
in a manner customary for such purposes, the Servicer will immediately notify or
cause to be notified the Trustee by a certification in the form of Exhibit E
(which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required to
be deposited in the Collection Account pursuant to Section 3.10 have been or
will be so deposited) of a Servicing Officer and shall request delivery to it of
the Mortgage File. Upon receipt of such certification and request, the Trustee
shall promptly release the related Mortgage File to the Servicer at the cost of
the related Servicer and at no cost to the Trustee or the Trust Fund. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection Account or the Distribution
Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Trustee shall, at the
expense of the related Servicer, upon any request made by or on behalf of the
Servicer and delivery to the Trustee of a Request for Release in the form of
Exhibit E, release the related Mortgage File to the Servicer, and the Trustee
shall, at the direction of the Servicer, execute such documents as shall be
necessary to the prosecution of any such proceedings. Such Request for Release
shall obligate the Servicer to return each and every document previously
requested from the Mortgage File to the Trustee when the need therefor by the
Servicer no longer exists, unless the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Collection Account or the Mortgage File or such document has been delivered to
an attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially, and
the Servicer has delivered, or caused to be delivered, to the Trustee an
additional Request for Release certifying as to such liquidation or action or
proceedings. Upon the request of the Trustee, the Servicer shall provide notice
to the Trustee of the name and address of the Person to which such Mortgage File
or such document was delivered and the purpose or purposes of such delivery.
Upon receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Collection Account have been so deposited, or that such Mortgage Loan has become
an REO Property, any outstanding Requests for Release with respect to such
Mortgage Loan shall be released by the Trustee to the Servicer or its designee.
(c) Upon written certification of a Servicing Officer, the
Trustee shall execute and deliver to the Servicer or the Sub-Servicer, as the
case may be, any court pleadings, requests for trustee's sale or other documents
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Mortgage Note or Mortgage
or otherwise available at law or in equity. Each such certification shall
include a request that such pleadings or documents be executed by the Trustee
and a statement as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee will
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not invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.18. Servicing Compensation.
As compensation for the activities of the Servicer hereunder,
the Servicer shall be entitled to the Servicing Fee with respect to each
Mortgage Loan payable solely from payments of interest in respect of such
Mortgage Loan, subject to Section 3.24. In addition, the Servicer shall be
entitled to recover unpaid Servicing Fees out of Insurance Proceeds or
Liquidation Proceeds to the extent permitted by Section 3.11(a)(iii) and out of
amounts derived from the operation and sale of an REO Property to the extent
permitted by Section 3.23. Except as provided in Sections 3.26, the right to
receive the Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Servicer's responsibilities and
obligations under this Agreement; provided, however, that the Servicer may pay
from the Servicing Fee any amounts due to a Sub-Servicer pursuant to a
Sub-Servicing Agreement entered into under Section 3.02.
Additional servicing compensation in the form of assumption or
modification fees, late payment charges, insufficient funds charges or otherwise
(subject to Section 3.24 and other than Prepayment Charges) shall be retained by
the Servicer only to the extent such fees or charges are received by the
Servicer. The Servicer shall also be entitled pursuant to Section 3.11(a)(iv) to
withdraw from the Collection Account and pursuant to Section 3.23(b) to withdraw
from any REO Account, as additional servicing compensation, interest or other
income earned on deposits therein, subject to Section 3.12 and Section 3.24. The
Servicer shall be required to pay all expenses incurred by it in connection with
its servicing activities hereunder (including premiums for the insurance
required by Section 3.14, to the extent such premiums are not paid by the
related Mortgagors or by a Sub-Servicer, servicing compensation of each
Sub-Servicer, and to the extent provided herein in Section 8.05, the expenses of
the Trustee) and shall not be entitled to reimbursement therefor except as
specifically provided herein.
SECTION 3.19. Reports to the Trustee and Others; Collection
Account Statements.
Not later than twenty days after each Distribution Date, the
Servicer shall forward to the Trustee (upon the Trustee's request), the
Guarantor (upon request), the Certificate Insurer and the Depositor the most
current available bank statement for the Collection Account. Copies of such
statement shall be provided by the Trustee to any Certificateholder and to any
Person identified to the Trustee as a prospective transferee of a Certificate,
upon request at the expense of the requesting party, provided such statement is
delivered by the Servicer to the Trustee.
In addition, on each Distribution Date, the Servicer shall
forward to the Rating Agencies, the Guarantor, the Certificate Insurer and the
Trustee a report setting forth the percentage of Mortgage Loans that are 30 or
more days delinquent, in foreclosure, have been converted to REO Properties or
have been discharged by reason of bankruptcy.
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SECTION 3.20. Statement as to Compliance.
Not later than March 15th of each calendar year commencing in
2005, each Servicer will deliver to the Trustee, the Depositor, the Guarantor
and the Certificate Insurer an Officers' Certificate (upon which the Trustee can
conclusively rely in connection with its obligations under Section 4.06)
substantially in the form of Exhibit L attached hereto stating, as to each
signatory thereof, that (i) a review of the activities of the Servicer during
the preceding calendar year and of performance under this Agreement has been
made under such officer's supervision and (ii) to the best of such officer's
knowledge, based on such review, the Servicer has fulfilled all of its
obligations under this Agreement throughout such calendar year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof. Copies of any
such statement shall be provided by the Trustee to any Certificateholder and to
any Person identified to the Trustee as a prospective transferee of a
Certificate, upon request at the expense of the requesting party, provided such
statement is delivered by the Servicer to the Trustee.
SECTION 3.21. Independent Public Accountants' Servicing
Report.
Not later than March 15th of each calendar year commencing in
2005, each Servicer, at its expense, shall cause a nationally recognized firm of
independent certified public accountants to furnish to the Servicer a report
stating that (i) it has obtained a letter of representation regarding certain
matters from the management of the Servicer which includes an assertion that the
Servicer has complied with certain minimum residential mortgage loan servicing
standards, identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America, with respect
to the servicing of residential mortgage loans during the most recently
completed calendar year and (ii) on the basis of an examination conducted by
such firm in accordance with standards established by the American Institute of
Certified Public Accountants, such representation is fairly stated in all
material respects, subject to such exceptions and other qualifications that may
be appropriate. In rendering its report such firm may rely, as to matters
relating to the direct servicing of residential mortgage loans by Sub-Servicers,
upon comparable reports of firms of independent certified public accountants
rendered on the basis of examinations conducted in accordance with the same
standards (rendered within one year of such report) with respect to those
Sub-Servicers. Immediately upon receipt of such report, the Servicer shall, at
its own expense, furnish a copy of such report to the Trustee, the Guarantor,
the Certificate Insurer and each Rating Agency. Copies of such statement shall
be provided by the Trustee to any Certificateholder upon request, provided that
such statement is delivered by the Servicer to the Trustee.
SECTION 3.22. Access to Certain Documentation.
(a) The Servicer shall provide to the Office of Thrift
Supervision, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder or
Certificate Owner, access to the documentation in the Servicer's possession
regarding the Mortgage Loans required by applicable laws and regulations. Such
access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Servicer designated by it. In
addition, access to the documentation in the Servicer's possession regarding the
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Mortgage Loans will be provided to any Certificateholder or Certificate Owner,
the Trustee, the Guarantor, the Certificate Insurer and to any Person identified
to the Servicer as a prospective transferee of a Certificate; provided, however,
that providing access to such Person will not violate any applicable laws, upon
reasonable request during normal business hours at the offices of the Servicer
designated by it at the expense of the Person requesting such access. Nothing in
this Section shall limit the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Servicer to provide access as provided in this Section
3.22(a) as a result of such obligation shall not constitute a breach of this
Section 3.22(a). In each case, access to any documentation regarding the
Mortgage Loans may be conditioned upon the requesting party's acknowledgement in
writing of a confidentiality agreement reasonably satisfactory to the Servicer
regarding any information that is required to remain confidential under the
Xxxxx-Xxxxx-Xxxxxx Act of 1999.
(b) For a period of two years from the Closing Date, the
Guarantor may contact the Depositor to confirm that the Originator continues to
actively engage in a program to originate mortgage loans to low-income families
and to obtain other non-proprietary information about the Originator's
activities that may assist the Guarantor in completing its own regulatory
requirements during normal business hours and subject to reimbursement for
expenses. The Depositor shall use reasonable efforts to provide such information
to the Guarantor.
SECTION 3.23. Title, Management and Disposition of REO
Property.
(a) The deed or certificate of sale of any REO Property shall
be taken in the name of the Trustee, or its nominee, in trust for the benefit of
the Certificateholders. The Servicer, on behalf of REMIC I, shall either sell
any REO Property prior to the end of the third taxable year after REMIC I
acquires ownership of such REO Property for purposes of Section 860G(a)(8) of
the Code or request from the Internal Revenue Service, no later than 60 days
before the day on which the three-year grace period would otherwise expire, an
extension of the three-year grace period, unless the Servicer shall have
delivered to the Trustee, the Certificate Insurer and the Guarantor an Opinion
of Counsel, addressed to the Trustee, the Depositor, the Guarantor and the
Certificate Insurer, to the effect that the holding by REMIC I-A, REMIC I-B or
REMIC I-C of such REO Property subsequent to three years after its acquisition
will not result in the imposition on any Trust REMIC of taxes on "prohibited
transactions" thereof, as defined in Section 860F of the Code, or cause any
Trust REMIC to fail to qualify as a REMIC under Federal law at any time that any
Certificates are outstanding. The Servicer shall manage, conserve, protect and
operate each REO Property for the Certificateholders solely for the purpose of
its prompt disposition and sale in a manner which does not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by any Trust REMIC of
any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code, or any "net income from foreclosure property" which
is subject to taxation under the REMIC Provisions.
(b) The Servicer shall segregate and hold all funds collected
and received in connection with the operation of any REO Property separate and
apart from its own funds and general assets and shall establish and maintain, or
cause to be established and maintained, with respect to REO Properties, an
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account held in trust for the Trustee for the benefit of the Certificateholders
and the Certificate Insurer (the "REO Account"), which shall be an Eligible
Account. The Servicer shall be permitted to allow the Collection Account to
serve as the REO Account, subject to separate ledgers for each REO Property. The
Servicer shall be entitled to retain or withdraw any interest income paid on
funds deposited in the REO Account.
(c) The Servicer shall have the sole discretion to determine
whether an immediate sale of an REO Property or continued management of
such REO Property is in the best interests of the Certificateholders
and the Certificate Insurer. In furtherance of the foregoing, the
Servicer shall have full power and authority, subject only to the
specific requirements and prohibitions of this Agreement, to do any and
all things in connection with any REO Property as are consistent with
the manner in which the Servicer manages and operates similar property
owned by the Servicer or any of its Affiliates, all on such terms and
for such period as the Servicer deems to be in the best interests of
Certificateholders. In connection therewith, the Servicer shall
deposit, or cause to be deposited in the REO Account, in no event more
than two Business Days after the Servicer's receipt thereof, all
revenues received by it with respect to an REO Property and shall
withdraw therefrom funds necessary for the proper operation, management
and maintenance of such REO Property including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account with
respect to an REO Property are insufficient for the purposes set forth in
clauses (i) through (iii) above with respect to such REO Property, the Servicer
shall advance from its own funds such amount as is necessary for such purposes
if, but only if, the Servicer would make such advances if the Servicer owned the
REO Property and if in the Servicer's judgment, the payment of such amounts will
be recoverable from the rental or sale of the REO Property.
Notwithstanding the foregoing, neither the Servicer nor the
Trustee shall:
(i) authorize the Trust Fund to enter into, renew or extend
any New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents from
Real Property;
(ii) authorize any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize any construction on any REO Property, other
than the completion of a building or other improvement thereon, and
then only if more than ten percent of the construction
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of such building or other improvement was completed before default on
the related Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) authorize any Person to Directly Operate any REO Property
on any date more than 90 days after its date of acquisition by the
Trust Fund;
unless, in any such case, the Servicer has obtained an Opinion of Counsel,
provided to the Trustee, the Guarantor and the Certificate Insurer, to the
effect that such action will not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code at
any time that it is held by REMIC I, in which case the Servicer may take such
actions as are specified in such Opinion of Counsel.
The Servicer may contract with any Independent Contractor for
the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above and remit all related revenues
(net of such costs and expenses) to the Servicer as soon as
practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.23(c) relating
to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Servicer of any of its duties
and obligations to the Trustee on behalf of the Certificateholders and
the Certificate Insurer with respect to the operation and management of
any such REO Property; and
(iv) the Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. The Servicer shall be solely liable for all fees
owed by it to any such Independent Contractor, irrespective of whether the
Servicer's compensation pursuant to Section 3.18 is sufficient to pay such fees;
provided, however, that to the extent that any payments made by such Independent
Contractor would constitute Servicing Advances if made by the Servicer, such
amounts shall be reimbursable as Servicing Advances made by the Servicer.
(d) In addition to the withdrawals permitted under Section
3.23(c), the Servicer may from time to time make withdrawals from the REO
Account for any REO Property: (i) to pay itself or any
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Sub-Servicer unpaid Servicing Fees in respect of the related Mortgage Loan; and
(ii) to reimburse itself or any Sub-Servicer for unreimbursed Servicing Advances
and P&I Advances made in respect of such REO Property or the related Mortgage
Loan. On the Servicer Remittance Date, the Servicer shall withdraw from each REO
Account maintained by it and deposit into the Distribution Account in accordance
with Section 3.10(d)(ii), for distribution on the related Distribution Date in
accordance with Section 4.01, the income from the related REO Property received
during the prior calendar month, net of any withdrawals made pursuant to Section
3.23(c) or this Section 3.23(d).
(e) Subject to the time constraints set forth in Section
3.23(a), each REO Disposition shall be carried out by the Servicer at such price
and upon such terms and conditions as the Servicer shall deem necessary or
advisable, as shall be normal and usual in its Accepted Servicing Practices.
(f) The proceeds from the REO Disposition, net of any amount
required by law to be remitted to the Mortgagor under the related Mortgage Loan
and net of any payment or reimbursement to the Servicer or any Sub-Servicer as
provided above, shall be deposited in the Distribution Account in accordance
with Section 3.10(d)(ii) on the Servicer Remittance Date in the month following
the receipt thereof for distribution on the related Distribution Date in
accordance with Section 4.01. Any REO Disposition shall be for cash only (unless
changes in the REMIC Provisions made subsequent to the Startup Day allow a sale
for other consideration).
(g) The Servicer shall file information returns with respect
to the receipt of mortgage interest received in a trade or business, reports of
foreclosures and abandonments of any Mortgaged Property and cancellation of
indebtedness income with respect to any Mortgaged Property as required by
Sections 6050H, 6050J and 6050P of the Code, respectively. Such reports shall be
in form and substance sufficient to meet the reporting requirements imposed by
such Sections 6050H, 6050J and 6050P of the Code.
SECTION 3.24. Obligations of the Servicer in Respect of
Prepayment Interest Shortfalls.
Each Servicer shall deliver to the Trustee for deposit into
the Distribution Account by 3:00 p.m. New York time on the Servicer Remittance
Date from its own funds an amount equal to the lesser of (i) the aggregate of
the Prepayment Interest Shortfalls for the related Distribution Date resulting
from full or partial Principal Prepayments during the related Prepayment Period
and (ii) the aggregate Servicing Fee for the related Servicer for the related
Prepayment Period. Any amounts paid by the Servicer pursuant to this Section
3.24 shall not be reimbursed by any Trust REMIC or the Trust Fund.
SECTION 3.25. Obligations of the Servicer in Respect of
Mortgage Rates and Monthly Payments.
In the event that a shortfall in any collection on or
liability with respect to any Mortgage Loan results from or is attributable to
adjustments to Mortgage Rates, Monthly Payments or Stated Principal Balances
that were made by the Servicer in a manner not consistent with the terms of the
related
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Mortgage Note and this Agreement, the Servicer, upon discovery or receipt of
notice thereof, immediately shall deliver to the Trustee for deposit in the
Distribution Account from its own funds the amount of any such shortfall and
shall indemnify and hold harmless the Trust Fund, the Trustee, the Guarantor,
the Certificate Insurer, the Depositor and any successor Servicer in respect of
any such liability. Such indemnities shall survive the termination or discharge
of this Agreement. Notwithstanding the foregoing, this Section 3.25 shall not
limit the ability of the Servicer to seek recovery of any such amounts from the
related Mortgagor under the terms of the related Mortgage Note, as permitted by
law.
SECTION 3.26. Advance Facility.
(a) Either Servicer, with the consent of the Certificate
Insurer and the Guarantor, is hereby authorized to enter into a facility with
any Person which provides that such Person (an "Advancing Person") may fund P&I
Advances and/or Servicing Advances to the Trust Fund under this Agreement,
although no such facility shall reduce or otherwise affect the Servicer's
obligation to fund such P&I Advances and/or Servicing Advances. If the Servicer
enters into such an Advance Facility pursuant to this Section 3.26, upon
reasonable request of the Advancing Person, the Trustee shall execute a letter
of acknowledgment, confirming its receipt of notice of the existence of such
Advance Facility. If the Trustee enters into such an Advance Facility pursuant
to this Section 3.26, the Servicer shall also be a party to such Advance
Facility. To the extent that an Advancing Person funds any P&I Advance or any
Servicing Advance and the Servicer provides the Trustee with an Officers'
Certificate that such Advancing Person is entitled to reimbursement, such
Advancing Person shall be entitled to receive reimbursement pursuant to this
Agreement for such amount to the extent provided in Section 3.26(b). Such
Officers' Certificate must specify the amount of the reimbursement, the Section
of this Agreement that permits the applicable P&I Advance or Servicing Advance
to be reimbursed and the section(s) of the Advance Facility that entitle the
Advancing Person to request reimbursement from the Trustee, rather than the
Servicer or proof of an Event of Default under the Advance Facility. The Trustee
shall have no duty or liability with respect to any calculation of any
reimbursement to be paid to an Advancing Person and shall be entitled to rely
without independent investigation on the Advancing Person's notice provided
pursuant to this Section 3.26. An Advancing Person whose obligations hereunder
are limited to the funding of P&I Advances and/or Servicing Advances shall not
be required to meet the qualifications of the Servicer or a Sub-Servicer
pursuant to Section 3.02 hereof and will not be deemed to be a Sub-Servicer
under this Agreement.
(b) If an advancing facility is entered into, then the
Servicer shall not be permitted to reimburse itself therefor under Section
3.11(a)(ii), Section 3.11(a)(iii) and Section 3.11(a)(vi) prior to the
remittance to the Trust Fund, but instead the Servicer shall remit such amounts
in accordance with the documentation establishing the Advance Facility to such
Advancing Person or to a trustee, agent or custodian (an "Advance Facility
Trustee") designated by such Advancing Person. The Trustee is hereby authorized
to pay to the Advancing Person, reimbursements for P&I Advances and Servicing
Advances from the Distribution Account to the same extent the Servicer would
have been permitted to reimburse itself for such P&I Advances and/or Servicing
Advances in accordance with 3.11(a)(ii), Section 3.11(a)(iii) and Section
3.11(a)(vi), as the case may be, had the Servicer itself funded such P&I Advance
or Servicing Advance. The Trustee is hereby authorized to pay directly to the
Advancing Person such portion of the Servicing Fee as the parties to any
advancing facility agree in writing.
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(c) All P&I Advances and Servicing Advances made pursuant to
the terms of this Agreement shall be deemed made and shall be reimbursed on a
"first in-first out" (FIFO) basis.
(d) Any amendment to this Section 3.26 or to any other
provision of this Agreement that may be necessary or appropriate to effect the
terms of an Advance Facility as described generally in this Section 3.26,
including amendments to add provisions relating to a successor Servicer, may be
entered into by the Trustee and the Servicer without the consent of any
Certificateholder, notwithstanding anything to the contrary in this Agreement.
SECTION 3.27. [Reserved].
SECTION 3.28 Net WAC Rate Carryover Reserve Accounts.
(a) No later than the Closing Date, the Trustee shall
establish and maintain with itself, as agent for the Trustee, three separate,
segregated trust accounts titled, "Group I Net WAC Rate Carryover Reserve
Account, Deutsche Bank National Trust Company, as Trustee, in trust for the
registered holders of New Century Home Equity Loan Trust, Series 2004-A, Asset
Backed Pass-Through Certificates," "Group II Net WAC Rate Carryover Reserve
Account, Deutsche Bank National Trust Company, as Trustee, in trust for the
registered holders of New Century Home Equity Loan Trust, Series 2004-A, Asset
Backed Pass-Through Certificates" and "Group III Net WAC Rate Carryover Reserve
Account, Deutsche Bank National Trust Company, as Trustee, in trust for the
registered holders of New Century Home Equity Loan Trust, Series 2004-A, Asset
Backed Pass-Through Certificates." The amount on deposit in the Net WAC Rate
Carryover Reserve Accounts will consist of any payments received by the Trustee
under the related Cap Contracts and deposited into the Net WAC Rate Carryover
Reserve Account. All amounts deposited in the Net WAC Rate Carryover Reserve
Account shall be distributed to the Holders of the related Class A Certificates
and the Mezzanine Certificates in the manner set forth in Section 4.01(a)(4).
(b) On each Distribution Date as to which there is a Net WAC
Rate Carryover Amount payable to the Class A Certificates or the Mezzanine
Certificates, the Trustee has been directed by the Class CE-I Certificateholders
(in the case of the Group I Net WAC Rate Carryover Reserve Account), the Class
CE-II Certificateholders (in the case of the Group II Net WAC Rate Carryover
Reserve Account) and the Class CE-III Certificateholders (in the case of the
Group III Net WAC Rate Carryover Reserve Account) to, and therefore will,
deposit into the related Net WAC Rate Carryover Reserve Account the amounts
described in Section 4.01(a)(4), rather than distributing such amounts to the
related Class CE Certificateholders. On each such Distribution Date, the Trustee
shall hold all such amounts for the benefit of the Holders of the related Class
A Certificates, and Mezzanine Certificates, and will distribute such amounts to
the Holders of such Class A Certificates and Mezzanine Certificates in the
amounts and priorities set forth in Section 4.01(a).
(c) For federal and state income tax purposes, the Class CE-I
Certificateholders (in the case of the Group I Net WAC Rate Carryover Reserve
Account), the Class CE-II Certificateholders (in the case of the Group II Net
WAC Rate Carryover Reserve Account) and the Class CE-III
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Certificateholders (in the case of the Group III Net WAC Rate Carryover Reserve
Account) will be deemed to be the owners of the related Net WAC Rate Carryover
Reserve Account and all amounts deposited into such Net WAC Rate Carryover
Reserve Account shall be treated as amounts distributed by REMIC III to the
Holders of the related Class CE Certificates. Upon the termination of the Trust
Fund, or the payment in full of the related Class A Certificates and Mezzanine
Certificates, all amounts remaining on deposit in the related Net WAC Rate
Carryover Reserve Account will be released by the Trust Fund and distributed to
the related Class CE Certificateholders or their designees. The Net WAC Rate
Carryover Reserve Account will be part of the Trust Fund but not part of any
REMIC and any payments to the Holders of the related Class A Certificates or
Mezzanine Certificates of Net WAC Rate Carryover Amounts will not be payments
with respect to a "regular interest" in a REMIC within the meaning of Code
Section 860G(a)(1).
(d) By accepting a Class CE Certificate, each Class CE
Certificateholder hereby agrees to direct the Trustee, and the Trustee hereby is
directed, to deposit into the related Net WAC Rate Carryover Reserve Account the
amounts described above on each Distribution Date as to which there is any Net
WAC Rate Carryover Amount rather than distributing such amounts to the related
Class CE Certificateholders. By accepting a Class CE Certificate, each Class CE
Certificateholder further agrees that such direction is given for good and
valuable consideration, the receipt and sufficiency of which is acknowledged by
such acceptance.
(e) Funds on deposit in the Net WAC Rate Carryover Reserve
Accounts shall remain uninvested.
(f) For federal tax return and information reporting, the
right of the Holders of the Class A Certificates and the Mezzanine Certificates
to receive payments from the related Net WAC Rate Carryover Reserve Account in
respect of any Net Wac Rate Carryover Amount shall be assigned a value of zero.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(1) On each Distribution Date, the following amounts, in the
following order of priority, shall be distributed by REMIC I-A, REMIC I-B and
REMIC I-C to REMIC II on account of the REMIC I-A Regular Interests, the REMIC
I-B Regular Interests and the REMIC I-C Regular Interests or withdrawn from the
Distribution Account and distributed to the holders of the Class R-I
Certificates, the Class R-II Certificates and the Class R-III Certificates, as
the case may be:
With respect to the Group I Mortgage Loans:
(i) to the Holders of REMIC I-A Regular Interest IA-LT1, REMIC
I-A Regular Interest IA-LT2 and REMIC I-A Regular Interest IA-LTP in an
amount equal to (A) the Uncertificated Interest for each REMIC I-A
Regular Interest for such Distribution Date, plus (B) any amounts in
respect thereof remaining unpaid from previous Distribution Dates;
(ii) to the Holders of REMIC I-A Regular Interest IA-LT1 and
REMIC I-A Regular Interest IA-LT2 until the Uncertificated Balance of
each such REMIC I-A Regular Interest is reduced to zero;
(iii) to the Holders of REMIC I-A Regular Interest IA-LTP, on
the Distribution Date immediately following the expiration of the
latest Prepayment Charge on the Group I Mortgage Loans as identified on
the Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause; and
(iv) any remaining amount to the Holders of the Class R-I
Certificates.
With respect to the Group II Mortgage Loans:
(i) to the Holders of REMIC I-B Regular Interest IB-LT1 and
REMIC I-B Regular Interest IB-LTP in an amount equal to (A) the
Uncertificated Interest for each REMIC I-B Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from previous Distribution Dates;
(ii) to the Holders of REMIC I-B Regular Interest IB-LT1 until
the Uncertificated Balance of REMIC I-B Regular Interest IB-LT1 is
reduced to zero;
(iii) to the Holders of REMIC I-B Regular Interest IB-LTP, on
the Distribution Date immediately following the expiration of the
latest Prepayment Charge on the Group II Mortgage
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Loans as identified on the Prepayment Charge Schedule or any
Distribution Date thereafter until $100 has been distributed pursuant
to this clause; and
(iv) any remaining amount to the Holders of the Class R-II
Certificates.
With respect to the Group III Mortgage Loans:
(i) to the Holders of REMIC I-C Regular Interest IC-LT1, REMIC
I-C Regular Interest IC-LT2 and REMIC I-C Regular Interest IC-LTP in an
amount equal to (A) the Uncertificated Interest for each REMIC I-C
Regular Interest for such Distribution Date, plus (B) any amounts in
respect thereof remaining unpaid from previous Distribution Dates;
(ii) to the Holders of REMIC I-C Regular Interest IC-LT1 and
REMIC I-C Regular Interest IC-LT2, until the Uncertificated Balance of
each such REMIC I-C Regular Interest is reduced to zero;
(iii) to the Holders of REMIC I-C Regular Interest IC-LTP, on
the Distribution Date immediately following the expiration of the
latest Prepayment Charge on the Group III Mortgage Loans as identified
on the Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause; and
(iv) any remaining amount to the Holders of the Class R-III
Certificates.
On each Distribution Date, all amounts representing Prepayment
Charges in respect of the Group I Mortgage Loans received during the related
Prepayment Period will be distributed by REMIC I-A to the Holders of REMIC I-A
Regular Interest IA-LTP. The payment of the foregoing amounts to the Holders of
REMIC I-A Regular Interest IA-LTP shall not reduce the Uncertificated Balance
thereof. On each Distribution Date, all amounts representing Prepayment Charges
in respect of the Group II Mortgage Loans received during the related Prepayment
Period will be distributed by REMIC I-B to the Holders of REMIC I-B Regular
Interest IB-LTP. The payment of the foregoing amounts to the Holders of REMIC
I-B Regular Interest IB-LTP shall not reduce the Uncertificated Balance thereof.
On each Distribution Date, all amounts representing Prepayment Charges in
respect of the Group III Mortgage Loans received during the related Prepayment
Period will be distributed by REMIC I-C to the Holders of REMIC I-C Regular
Interest IC-LTP. The payment of the foregoing amounts to the Holders of REMIC
I-C Regular Interest IC-LTP shall not reduce the Uncertificated Balance thereof.
(2) On each Distribution Date, the Trustee shall cause in the
following order of priority, the following amounts which shall be deemed to be
distributed by REMIC II to REMIC III on account of the REMIC II Regular
Interests or withdrawn from the Distribution Account and distributed to the
holders of the Class R-X Certificates (in respect of the Class R-II Interest),
as the case may be:
With respect to the Group I Mortgage Loans:
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(i) to the Holders of REMIC II Regular Interest II-LTAA1,
REMIC II Regular Interest II-LTAI1, REMIC II Regular Interest II-LTAI2,
REMIC II Regular Interest II-LTAI3, REMIC II Regular Interest II-LTAI4,
REMIC II Regular Interest II-LTAI5, REMIC II Regular Interest II-LTAI6,
REMIC II Regular Interest II-LTAI7, REMIC II Regular Interest II-LTAI8,
REMIC II Regular Interest II-LTAI9, REMIC II Regular Interest II-LTMI1,
REMIC II Regular Interest II-LTMI2, REMIC II Regular Interest II-LTB1
and REMIC II Regular Interest II-LTZZ1 in an amount equal to (A) the
Uncertificated Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates. Amounts payable as Uncertificated Interest in respect of REMIC
II Regular Interest II-LTZZ1 shall be reduced when the sum of the REMIC
II Group I Overcollateralized Amount is less than the REMIC II Group I
Required Overcollateralized Amount, by the lesser of (x) the amount of
such difference and (y) the Maximum II-LTZZ1 Uncertificated Interest
Deferral Amount and such amounts will be payable to the Holders of
REMIC II Regular Interest II-LTAI1, REMIC II Regular Interest II-LTAI2,
REMIC II Regular Interest II-LTAI3, REMIC II Regular Interest II-LTAI4,
REMIC II Regular Interest II-LTAI5, REMIC II Regular Interest II-LTAI6,
REMIC II Regular Interest II-LTAI7, REMIC II Regular Interest II-LTAI8,
REMIC II Regular Interest II-LTAI9, REMIC II Regular Interest II-LTMI1,
REMIC II Regular Interest II-LTMI2 and REMIC II Regular Interest
II-LTB1 in the same proportion as the Group I Overcollateralization
Increase Amount is allocated to the Corresponding Certificates and the
Uncertificated Balance of REMIC II Regular Interest II-LTZZ1 shall be
increased by such amount; and
(ii) to the Holders of REMIC II Regular Interests, in an
amount equal to the remainder of the Group I 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 to the Holders of REMIC
II Regular Interest II-LTAA1, (less the amount payable in
clause (d) below), until the Uncertificated Balance of such
REMIC II Regular Interest is reduced to zero;
(b) 2.00% of such remainder, first, to the Holders of
REMIC II Regular Interest II-LTAI1, REMIC II Regular Interest
II-LTAI2, REMIC II Regular Interest II- LTAI3, REMIC II
Regular Interest II-LTAI4, REMIC II Regular Interest II-LTAI5,
REMIC II Regular Interest II-LTAI6, REMIC II Regular Interest
II-LTAI7, REMIC II Regular Interest II-LTAI8, REMIC II Regular
Interest II-LTAI9, REMIC II Regular Interest II-LTMI1, REMIC
II Regular Interest II-LTMI2 and REMIC II Regular Interest
II-LTB1, 1.00% of and in the same proportion as principal
payments are allocated to the Corresponding Certificates,
until the Uncertificated Balances of such REMIC II Regular
Interests are reduced to zero and second, to the Holders of
REMIC II Regular Interest II- LTZZ1 (less the amount payable
in clause (d) below), until the Uncertificated Balance of such
REMIC II Regular Interest is reduced to zero; then
(c) to the Holders of REMIC II Regular Interest
II-LTP1, on the Distribution Date immediately following the
expiration of the latest Prepayment Charge on the Group
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I Mortgage Loans as identified on the Prepayment Charge
Schedule or any Distribution Date thereafter until $100 has
been distributed pursuant to this clause; and
(d) any remaining amount to the Holders of the Class
R-X Certificates (as Holder of the Class R-II Interest);
provided, however, that 98.00% and 2.00% of any principal payments that are
attributable to a Group I Overcollateralization Reduction Amount shall be
allocated to Holders of REMIC II Regular Interest II- LTAA1 and REMIC II Regular
Interest I-LTZZ1, respectively.
With respect to the Group II Mortgage Loans:
(i) to the Holders of REMIC II Regular Interest II-LTAA2,
REMIC II Regular Interest II-LTAII1, REMIC II Regular Interest
II-LTAII2, REMIC II Regular Interest II-LTAII3, REMIC II Regular
Interest II-LTAII4, REMIC II Regular Interest II-LTAII5, REMIC II
Regular Interest II-LTAII6, REMIC II Regular Interest II-LTAII7, REMIC
II Regular Interest II-LTAII8, REMIC II Regular Interest II-LTAII9,
REMIC II Regular Interest II-LTM2, REMIC II Regular Interest II-LTB2
and REMIC II Regular Interest II-LTZZ2 in an amount equal to (A) the
Uncertificated Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates. Amounts payable as Uncertificated Interest in respect of REMIC
II Regular Interest II-LTZZ2 shall be reduced when the sum of the REMIC
II Group II Overcollateralized Amount is less than the REMIC II Group
II Required Overcollateralized Amount, by the lesser of (x) the amount
of such difference and (y) the Maximum II-LTZZ2 Uncertificated Interest
Deferral Amount and such amounts will be payable to the Holders of
REMIC II Regular Interest II-LTAII1, REMIC II Regular Interest
II-LTAII2, REMIC II Regular Interest II-LTAII3, REMIC II Regular
Interest II-LTAII4, REMIC II Regular Interest II-LTAII5, REMIC II
Regular Interest II-LTAII6, REMIC II Regular Interest II-LTAII7, REMIC
II Regular Interest II-LTAII8, REMIC II Regular Interest II-LTAII9,
REMIC II Regular Interest II-LTM2 and REMIC II Regular Interest II-LTB2
in the same proportion as the Group II Overcollateralization Increase
Amount is allocated to the Corresponding Certificates and the
Uncertificated Balance of REMIC II Regular Interest II-LTZZ2 shall be
increased by such amount; and
(ii) to the Holders of REMIC II Regular Interests, in an
amount equal to the remainder of the Group II 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 to the Holders of REMIC
II Regular Interest II-LTAA2, (less the amount payable in
clause (d) below), until the Uncertificated Balance of such
REMIC II Regular Interest is reduced to zero;
(b) 2.00% of such remainder, first, to the Holders of
REMIC II Regular Interest II-LTAII1, REMIC II Regular Interest
II-LTAII2, REMIC II Regular Interest II-
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LTAII3, REMIC II Regular Interest II-LTAII4, REMIC II Regular
Interest II-LTAII5, REMIC II Regular Interest II-LTAII6, REMIC
II Regular Interest II-LTAII7, REMIC II Regular Interest
II-LTAII8, REMIC II Regular Interest II-LTAII9, REMIC II
Regular Interest II-LTM2 and REMIC II Regular Interest
II-LTB2, 1.00% of and in the same proportion as principal
payments are allocated to the Corresponding Certificates,
until the Uncertificated Balances of such REMIC II Regular
Interests are reduced to zero and second, to the Holders of
REMIC II Regular Interest II-LTZZ2 (less the amount payable in
clause (d) below), until the Uncertificated Balance of such
REMIC II Regular Interest is reduced to zero; then
(c) to the Holders of REMIC II Regular Interest
II-LTP2, on the Distribution Date immediately following the
expiration of the latest Prepayment Charge on the Group II
Mortgage Loans as identified on the Prepayment Charge Schedule
or any Distribution Date thereafter until $100 has been
distributed pursuant to this clause; and
(d) any remaining amount to the Holders of the Class
R-X Certificates (as Holder of the Class R-II Interest);
provided, however, that 98.00% and 2.00% of any principal payments that are
attributable to a Group II Overcollateralization Reduction Amount shall be
allocated to Holders of REMIC II Regular Interest II- LTAA2 and REMIC II Regular
Interest I-LTZZ2, respectively.
With respect to the Group III Mortgage Loans:
(i) to the Holders of REMIC II Regular Interest II-LTAA3,
REMIC II Regular Interest II-LTAIII1, REMIC II Regular Interest
II-LTAIII2, REMIC II Regular Interest II- LTAIII3, REMIC II Regular
Interest II-LTM3, REMIC II Regular Interest II-LTB3 and REMIC II
Regular Interest II-LTZZ3 in an amount equal to (A) the Uncertificated
Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates. Amounts
payable as Uncertificated Interest in respect of REMIC II Regular
Interest II-LTZZ3 shall be reduced when the sum of the REMIC II Group
III Overcollateralized Amount is less than the REMIC II Group III
Required Overcollateralized Amount, by the lesser of (x) the amount of
such difference and (y) the Maximum II-LTZZ3 Uncertificated Interest
Deferral Amount and such amounts will be payable to the Holders of
REMIC II Regular Interest II-LTAIII1, REMIC II Regular Interest
II-LTAIII2, REMIC II Regular Interest II-LTAIII3, REMIC II Regular
Interest II-LTM3 and REMIC II Regular Interest II-LTB3 in the same
proportion as the Group III Overcollateralization Increase Amount is
allocated to the Corresponding Certificates and the Uncertificated
Balance of REMIC II Regular Interest II-LTZZ3 shall be increased by
such amount; and
(ii) to the Holders of REMIC II Regular Interests, in an
amount equal to the remainder of the Group III Available Distribution
Amount for such Distribution Date after the distributions made pursuant
to clause (i) above, allocated as follows:
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(a) 98.00% of such remainder to the Holders of REMIC
II Regular Interest II-LTAA3 (less the amount payable in
clause (d) below), until the Uncertificated Balance of such
REMIC II Regular Interest is reduced to zero;
(b) 2.00% of such remainder, first, to the Holders of
REMIC II Regular Interest II-LTAIII1, REMIC II Regular
Interest II-LTAIII2, REMIC II Regular Interest II-LTAIII3,
REMIC II Regular Interest II-LTM3 and REMIC II Regular
Interest II- LTB3, 1.00% of and in the same proportion as
principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Balances of such REMIC
II Regular Interests are reduced to zero and second, to the
Holders of REMIC II Regular Interest II- LTZZ3 (less the
amount payable in clause (d) below), until the Uncertificated
Balance of such REMIC II Regular Interest is reduced to zero;
then
(c) to the Holders of REMIC II Regular Interest
II-LTP3, on the Distribution Date immediately following the
expiration of the latest Prepayment Charge on the Group III
Mortgage Loans as identified on the Prepayment Charge Schedule
or any Distribution Date thereafter until $100 has been
distributed pursuant to this clause; and
(d) any remaining amount to the Holders of the Class
R-X Certificates (as Holder of the Class R-II Interest);
provided, however, that 98.00% and 2.00% of any principal payments that are
attributable to a Group I Overcollateralization Reduction Amount shall be
allocated to Holders of REMIC II Regular Interest II- LTAA3 and REMIC II Regular
Interest I-LTZZ3, respectively.
Notwithstanding the distributions pursuant to this Section
4.01(1), distribution of funds shall conform to the distributions made pursuant
to Section 4.01(2), (3) and (4).
(2)(I) On each Distribution Date, the Trustee shall withdraw
from the Distribution Account an amount equal to the Group I Interest Remittance
Amount and distribute to the Certificateholders the following amounts, in the
following order of priority:
(i) to Xxxxxx Xxx, the Guaranty Fee;
(ii) concurrently, to the Holders of each Class of Group I
Class A Certificates, on a PRO RATA basis based on the entitlement of each such
Class, the Senior Interest Distribution Amount allocable to such Certificates;
(iii) to Xxxxxx Mae, any Guarantor Reimbursement Amount then
due;
(iv) to the Certificate Insurer, the amount owing to the
Certificate Insurer under the Insurance Agreement for the premium payable in
respect of the Class M-I-1 Certificates;
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(v) to the Holders of the Class M-I-1 Certificates, the Senior
Interest Distribution Amount allocable to such Certificates;
(vi) to the Certificate Insurer, the amount owing to the
Certificate Insurer under the Insurance Agreement for reimbursement for prior
draws made on the Policy in respect of the Class M-I-1 Certificates and any
other amounts owing to the Certificate Insurer under the Insurance Agreement
with respect to the Class M-I-1 Certificates;
(vii) concurrently, to the Holders of each Class of Group II
Class A Certificates and Group III Class A Certificates, on a PRO RATA basis
based on the entitlement of each such Class, the Senior Interest Distribution
Amount for such Certificates, to the extent remaining undistributed after the
distributions of the Group II Interest Remittance Amount as set forth in Section
4.01(a)(2)(II), the Group III-A Interest Remittance Amount as set forth in
Section 4.01(a)(2)(III) and the Group III-B Interest Remittance Amount as set
forth in Section 4.01(a)(2)(IV);
(viii) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Group II Class A Certificates
and Group III Class A Certificates and any other remaining amounts owing to the
Certificate Insurer under the Insurance Agreement with respect to the Group II
Class A Certificates and the Group III Class A Certificates, in each case, to
the extent remaining unpaid after the distributions of the Group II Interest
Remittance Amount as set forth in Section 4.01(a)(2)(II), the Group III-A
Interest Remittance Amount as set forth in Section 4.01(a)(2)(III) and the Group
III-B Interest Remittance Amount as set forth in Section 4.01(a)(2)(IV).
(II) On each Distribution Date, the Trustee shall withdraw
from the Distribution Account an amount equal to the Group II Interest
Remittance Amount and distribute to the Certificateholders the following
amounts, in the following order of priority:
(i) to the Certificate Insurer, the amount owing to the
Certificate Insurer under the Insurance Agreement for the premium payable in
respect of the Group II Class A Certificates;
(ii) concurrently, to the Holders of each Class of Group II
Class A Certificates, on a PRO RATA basis based on the entitlement of each such
Class, the Senior Interest Distribution Amount allocable to such Certificates;
(iii) to the Certificate Insurer, the amount owing to the
Certificate Insurer under the Insurance Agreement for reimbursement for prior
draws made on the Policy in respect of the Group II Class A Certificates and any
other amounts owing to the Certificate Insurer under the Insurance Agreement
with respect to the Group II Class A Certificates;
(iv) concurrently, to the Holders of each Class of Group I
Class A Certificates, the Class M-I-1 Certificates and the Group III Class A
Certificates, on a PRO RATA basis based on the entitlement of each such Class,
the Senior Interest Distribution Amount for such Certificates, to the extent
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remaining undistributed after the distributions of the Group I Interest
Remittance Amount as set forth in Section 4.01(a)(2)(I), the Group III-A
Interest Remittance Amount as set forth in Section 4.01(a)(2)(III) and the Group
III-B Interest Remittance Amount as set forth in Section 4.01(a)(2)(IV);
(v) to the Certificate Insurer, any remaining amounts owing to
the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Class M-I-1 Certificates and
Group III Class A Certificates and any other remaining amounts owing to the
Certificate Insurer under the Insurance Agreement with respect to the Class
M-I-1 Certificates and the Group III Class A Certificates, in each case, to the
extent remaining unpaid after the distributions of the Group I Interest
Remittance Amount as set forth in Section 4.01(a)(2)(I), the Group III-A
Interest Remittance Amount as set forth in Section 4.01(a)(2)(III) and the Group
III-B Interest Remittance Amount as set forth in Section 4.01(a)(2)(IV); and
(vi) to Xxxxxx Xxx, any outstanding Guarantor Reimbursement
Amount, to the extent remaining unpaid after the distribution of the Group I
Principal Remittance Amount as set forth in Section 4.01(a)(2)(I).
(III) On each Distribution Date, the Trustee shall withdraw
from the Distribution Account an amount equal to the Group III-A Interest
Remittance Amount and distribute to the Certificateholders the following
amounts, in the following order of priority:
(i) to the Certificate Insurer, the amount owing to the
Certificate Insurer under the Insurance Agreement for the premium payable in
respect of the Class A-III-A Certificates;
(ii) to the Holders of the Class A-III-A Certificates, the
Senior Interest Distribution Amount allocable to such Certificates;
(iii) to the Certificate Insurer, the amount owing to the
Certificate Insurer under the Insurance Agreement for reimbursement for prior
draws made on the Policy in respect of the Class A-III-A Certificates and any
other amounts owing to the Certificate Insurer under the Insurance Agreement
with respect to the Class A-III-A Certificates;
(iv) concurrently, to the Holders of each Class of Group I
Class A Certificates, the Class M-I-1 Certificates, the Group II Class A
Certificates and the Group III-B Certificates, on a PRO RATA basis based on the
entitlement of each such Class, the Senior Interest Distribution Amount for such
Certificates, to the extent remaining undistributed after the distributions of
the Group I Interest Remittance Amount as set forth in Section 4.01(a)(2)(I),
the Group II Interest Remittance Amount as set forth in Section 4.01(a)(2)(II)
and the Group III-B Interest Remittance Amount as set forth in Section
4.01(a)(2)(IV); and
(v) to the Certificate Insurer, any remaining amounts owing to
the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Class M-I-1 Certificates, the
Group II Class A Certificates and the Group III-B Certificates and any other
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remaining amounts owing to the Certificate Insurer under the Insurance Agreement
with respect to the Class M-I-1 Certificates, the Group II Class A Certificates
and the Group III-B Certificates, in each case, to the extent remaining unpaid
after the distributions of the Group I Interest Remittance Amount as set forth
in Section 4.01(a)(2)(I), the Group II Interest Remittance Amount as set forth
in Section 4.01(a)(2)(II) and the Group III-B Interest Remittance Amount as set
forth in Section 4.01(a)(2)(IV); and
(vi) to Xxxxxx Mae, any outstanding Guarantor Reimbursement
Amount, to the extent remaining unpaid after the distribution of the Group I
Principal Remittance Amount as set forth in Section 4.01(a)(2)(I).
(IV) On each Distribution Date, the Trustee shall withdraw
from the Distribution Account an amount equal to the Group III-B Interest
Remittance Amount and distribute to the Certificateholders the following
amounts, in the following order of priority:
(i) to the Certificate Insurer, the amount owing to the
Certificate Insurer under the Insurance Agreement for the premium payable in
respect of the Group III-B Certificates;
(ii) concurrently, to the Holders of each Class of Group III-B
Certificates, on a PRO RATA basis based on the entitlement of each such Class,
the Senior Interest Distribution Amount allocable to such Certificates;
(iii) to the Certificate Insurer, the amount owing to the
Certificate Insurer under the Insurance Agreement for reimbursement for prior
draws made on the Policy in respect of the Group III-B Certificates and any
other amounts owing to the Certificate Insurer under the Insurance Agreement
with respect to the Group III-B Certificates;
(iv) concurrently, to the Holders of each Class of Group I
Class A Certificates, the Class M-I-1 Certificates, the Group II Class A
Certificates and the Class A-III-A Certificates, on a PRO RATA basis based on
the entitlement of each such Class, the Senior Interest Distribution Amount for
such Certificates, to the extent remaining undistributed after the distributions
of the Group I Interest Remittance Amount as set forth in Section 4.01(a)(2)(I),
the Group II Interest Remittance Amount as set forth in Section 4.01(a)(2)(II)
and the Group III-A Interest Remittance Amount as set forth in Section
4.01(a)(2)(III); and
(v) to the Certificate Insurer, any remaining amounts owing to
the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Class M-I-1 Certificates, the
Group II Class A Certificates and the Group III-A Certificates and any other
remaining amounts owing to the Certificate Insurer under the Insurance Agreement
with respect to the Class M-I-1 Certificates, the Group II Class A Certificates
and the Group III-A Certificates, in each case, to the extent remaining unpaid
after the distributions of the Group I Interest Remittance Amount as set forth
in Section 4.01(a)(2)(I), the Group II Interest Remittance Amount as set forth
in Section 4.01(a)(2)(II) and the Group III-A Interest Remittance Amount as set
forth in Section 4.01(a)(2)(III); and
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(vi) to Xxxxxx Xxx, any outstanding Guarantor Reimbursement
Amount, to the extent remaining unpaid after the distribution of the
Group I Principal Remittance Amount as set forth in Section
4.01(a)(2)(I).
(V) On each Distribution Date, following the distributions
made pursuant to Section 4.01(a)(2)(I), the Trustee shall withdraw from
the Distribution Account an amount equal to any remaining Group I
Interest Remittance Amount and distribute to the Certificateholders the
following amounts, in the following order of priority:
(i) to the Holders of the Class M-I-2 Certificates, an amount
equal to the Interest Distribution Amount allocable to the Class M-I-2
Certificates; and
(ii) to the Holders of the Class B-I Certificates, an amount
equal to the Interest Distribution Amount allocable to the Class B-I
Certificates.
(VI) On each Distribution Date, following the distributions
made pursuant to Section 4.01(a)(2)(II), the Trustee shall withdraw
from the Distribution Account an amount equal to any remaining Group II
Interest Remittance Amount and distribute to the Certificateholders the
following amounts, in the following order of priority:
(i) to the Holders of the Class M-II Certificates, an amount
equal to the Interest Distribution Amount allocable to the Class M-II
Certificates; and
(ii) to the Holders of the Class B-II Certificates, an amount
equal to the Interest Distribution Amount allocable to the Class B-II
Certificates.
(VII) On each Distribution Date, following the distributions
made pursuant to Section 4.01(a)(2)(III) and (IV), the Trustee shall
withdraw from the Distribution Account an amount equal to any remaining
Group III-A Interest Remittance Amount and the Group III-B Interest
Remittance Amount and distribute to the Certificateholders the
following amounts, in the following order of priority:
(i) to the Holders of the Class M-III Certificates, an amount
equal to the Interest Distribution Amount allocable to the Class M-III
Certificates; and
(ii) to the Holders of the Class B-III Certificates, an amount
equal to the Interest Distribution Amount allocable to the Class B-III
Certificates.
(3)(I) On each Distribution Date (a) prior to the Stepdown
Date or (b) on which a Trigger Event is in effect, the Group I
Principal Distribution Amount shall be distributed in the following
order of priority:
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(i) to the Holders of the Group I Class A Certificates
(allocated among the Group I Class A Certificates in the priority described
below), until the Certificate Principal Balances thereof have been reduced to
zero;
(ii) to Xxxxxx Mae, any Guarantor Reimbursement Amount then
due to the extent not paid pursuant to Section 4.02(a)(2)(I)(iii);
(iii) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Class M-I-1 Certificates and
any other remaining amounts owing to the Certificate Insurer under the Insurance
Agreement with respect to the Class M-I-1 Certificates, to the extent not paid
pursuant to Section 4.02(a)(2)(I)(vi);
(iv) after taking into account the amount distributed to the
Holders of the Group II Class A Certificates pursuant to Section
4.02(a)(3)(II)(i), the Class A-III-A Certificates pursuant to Section
4.02(a)(3)(III)(i) and the Group III-B Certificates pursuant to Section
4.02(a)(3)(IV)(i) on such Distribution Date, concurrently, to the Holders of the
Group II Class A Certificates (allocated among the Group II Class A Certificates
in the priority described below), the Class A-III-A Certificates and the Group
III-B Certificates (allocated among the Group III-B Certificates in the priority
described below), on a PRO RATA basis based on the Certificate Principal Balance
of each such group or Class, until the Certificate Principal Balances thereof
have been reduced to zero; and
(v) to the Certificate Insurer, any remaining amounts owing to
the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Group II Class A Certificates
and the Group III Class A Certificates and any other remaining amounts owing to
the Certificate Insurer under the Insurance Agreement with respect to the Group
II Class A Certificates and the Group III Class A Certificates, in each case, to
the extent not paid pursuant to Section 4.02(a)(2).
(II) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Group II Principal
Distribution Amount shall be distributed in the following order of priority:
(i) to the Holders of the Group II Class A Certificates
(allocated among the Group II Class A Certificates in the priority described
below), until the Certificate Principal Balances thereof have been reduced to
zero;
(ii) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Group II Class A Certificates
and any other remaining amounts owing to the Certificate Insurer under the
Insurance Agreement with respect to the Group II Class A Certificates, to the
extent not paid pursuant to Section 4.02(a)(2)(II)(iii);
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(iii) after taking into account the amount distributed to the
Holders of the Group I Class A Certificates pursuant to Section
4.02(a)(3)(I)(i), the Class A-III-A Certificates pursuant to Section
4.02(a)(3)(III)(i) and the Group III-B Certificates pursuant to Section
4.02(a)(3)(IV)(i) on such Distribution Date, concurrently, to the Holders of the
Group I Class A Certificates (allocated among the Group I Class A Certificates
in the priority described below), the Class A-III-A Certificates and the Group
III-B Certificates (allocated among the Group III-B Certificates in the priority
described below), on a PRO RATA basis based on the Certificate Principal Balance
of each such group or Class, until the Certificate Principal Balances thereof
have been reduced to zero; and
(iv) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Class M-I-1 Certificates and
the Group III Class A Certificates and any other remaining amounts owing to the
Certificate Insurer under the Insurance Agreement with respect to the Class
M-I-1 Certificates and the Group III Class A Certificates, in each case, to the
extent not paid pursuant to Section 4.02(a)(2).
(III) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Group III-A Principal
Distribution Amount shall be distributed in the following order of priority:
(i) to the Holders of the Class A-III-A Certificates, until
the Certificate Principal Balance thereof has been reduced to zero;
(ii) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Class A-III-A Certificates and
any other remaining amounts owing to the Certificate Insurer under the Insurance
Agreement with respect to the Class A-III-A Certificates, to the extent not paid
pursuant to Section 4.02(a)(2)(III)(iii);
(iii) after taking into account the amount distributed to the
Holders of the Group I Class A Certificates pursuant to Section
4.02(a)(3)(I)(i), the Group II Class A Certificates pursuant to Section
4.02(a)(3)(II)(i) and the Group III-B Certificates pursuant to Section
4.02(a)(3)(IV)(i) on such Distribution Date, concurrently, to the Holders of the
Group I Class A Certificates (allocated among the Group I Class A Certificates
in the priority described below), the Group II Class A Certificates (allocated
among the Group II Class A Certificates in the priority described below) and the
Group III-B Certificates (allocated among the Group III-B Certificates in the
priority described below), on a PRO RATA basis based on the Certificate
Principal Balance of each such group, until the Certificate Principal Balances
thereof have been reduced to zero; and
(iv) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Class M-I-1 Certificates and
the Group II Class A Certificates and any other remaining amounts owing to the
Certificate Insurer under the Insurance Agreement with respect to the Class
M-I-1 Certificates and the Group II Class A Certificates, in each case, to the
extent not paid pursuant to Section 4.02(a)(2).
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(IV) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Group III-B Principal
Distribution Amount shall be distributed in the following order of
priority:
(i) to the Holders of the Group III-B Certificates (allocated
among the Group III-B Certificates in the priority described below),
until the Certificate Principal Balances thereof have been reduced to
zero;
(ii) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for
reimbursement for prior draws made on the Policy in respect of the
Group III-B Certificates and any other remaining amounts owing to the
Certificate Insurer under the Insurance Agreement with respect to the
Group III-B Certificates, to the extent not paid pursuant to Section
4.02(a)(2)(IV)(iii);
(iii) after taking into account the amount distributed to the
Holders of the Group I Class A Certificates pursuant to Section
4.02(a)(3)(I)(i), the Group II Class A Certificates pursuant to Section
4.02(a)(2)(II)(i) and the Class A-III-A Certificates pursuant to
Section 4.02(a)(2)(III)(i) on such Distribution Date, concurrently, to
the Holders of the Group I Class A Certificates (allocated among the
Group I Class A Certificates in the priority described below), the
Group II Class A Certificates (allocated among the Group II Class A
Certificates in the priority described below) and the Class A-III-A
Certificates, on a PRO RATA basis based on the Certificate Principal
Balance of each such group or Class, until the Certificate Principal
Balances thereof have been reduced to zero; and
(iv) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for
reimbursement for prior draws made on the Policy in respect of the
Class M-I-1 Certificates and the Group II Class A Certificates and any
other remaining amounts owing to the Certificate Insurer under the
Insurance Agreement with respect to the Class M-I-1 Certificates and
the Group II Class A Certificates, in each case, to the extent not paid
pursuant to Section 4.02(a)(2).
(V) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Group I Principal
Distribution Amount remaining undistributed for such Distribution Date
shall be distributed in the following order of priority:
(i) to the Holders of the Class M-I-1 Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero;
(ii) to the Holders of the Class M-I-2 Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero;
and
(iii) to the Holders of the Class B-I Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero.
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(VI) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Group II Principal
Distribution Amount remaining undistributed for such Distribution Date
shall be distributed in the following order of priority:
(i) to the Holders of the Class M-II Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero;
and
(ii) to the Holders of the Class B-II Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero.
(VII) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Group III-A Principal
Distribution Amount and the Group III-B Principal Distribution Amount
remaining undistributed for such Distribution Date shall be distributed
in the following order of priority:
(i) to the Holders of the Class M-III Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero;
and
(ii) to the Holders of the Class B-III Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero.
(VIII) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Group I
Principal Distribution Amount shall be distributed in the following
order of priority:
(i) to the Holders of the Group I Class A Certificates
(allocated among the Group I Class A Certificates in the priority
described below), the Group I Class A Principal Distribution Amount,
until the Certificate Principal Balances thereof have been reduced to
zero;
(ii) to Xxxxxx Xxx, any Guarantor Reimbursement Amount then
due to the extent not paid pursuant to Section 4.02(a)(2)(I)(iii);
(iii) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for
reimbursement for prior draws made on the Policy in respect of the
Class M-I-1 Certificates and any other remaining amounts owing to the
Certificate Insurer under the Insurance Agreement with respect to the
Class M-I-1 Certificates, to the extent not paid pursuant to Section
4.02(a)(2)(I)(vi);
(iv) concurrently, to the Holders of the Group II Class A
Certificates (allocated among the Group II Class A Certificates in the
priority described below), the Class A-III-A Certificates and the Group
III-B Certificates (allocated among the Group III-B Certificates in the
priority described below), on a PRO RATA basis based on the Certificate
Principal Balance of each such group or Class, an amount equal to the
excess, if any, of (x) the amount required to be distributed pursuant
to Section
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4.02(a)(3)(IX)(i) (in the case of the Group II Class A Certificates), Section
4.02(a)(3)(X)(i) (in the case of the Class A-III-A Certificates) or Section
4.02(a)(3)(XI)(i) (in the case of the Group III-B Certificates) for such
Distribution Date over (y) the amount actually distributed pursuant to Section
4.02(a)(3)(IX)(i), Section 4.02(a)(3)(X)(i) and Section 4.02(a)(3)(XI)(i) from
the Group II Principal Distribution Amount, the Group III-A Principal
Distribution Amount or the Group III-B Principal Distribution Amount, as
applicable, on such Distribution Date; and
(v) to the Certificate Insurer, any remaining amounts owing to
the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Group II Class A Certificates
and the Group III Class A Certificates and any other remaining amounts owing to
the Certificate Insurer under the Insurance Agreement with respect to the Group
II Class A Certificates and the Group III Class A Certificates, in each case, to
the extent not paid pursuant to Section 4.02(a)(2).
(IX) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Group II Principal
Distribution Amount shall be distributed in the following order of priority:
(i) to the Holders of the Group II Class A Certificates
(allocated among the Group II Class A Certificates in the priority described
below), the Group II Class A Principal Distribution Amount, until the
Certificate Principal Balances thereof have been reduced to zero;
(ii) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Group II Class A Certificates
and any other remaining amounts owing to the Certificate Insurer under the
Insurance Agreement with respect to the Group II Class A Certificates, to the
extent not paid pursuant to Section 4.02(a)(2)(II)(iii);
(iii) concurrently, to the Holders of the Group I Class A
Certificates (allocated among the Group I Class A Certificates in the priority
described below), the Class A-III-A Certificates and the Group III-B
Certificates (allocated among the Group III-B Certificates in the priority
described below), on a PRO RATA basis based on the Certificate Principal Balance
of each such group or Class, an amount equal to the excess, if any, of (x) the
amount required to be distributed pursuant to Section 4.02(a)(3)(VIII)(i) (in
the case of the Group I Class A Certificates), Section 4.02(a)(3)(X)(i) (in the
case of the Class A-III-A Certificates) or Section 4.02(a)(3)(XI)(i) (in the
case of the Group III-B Certificates) for such Distribution Date over (y) the
amount actually distributed pursuant to Section 4.02(a)(3)(VIII)(i), Section
4.02(a)(3)(X)(i) and Section 4.02(a)(3)(XI)(i) from the Group I Principal
Distribution Amount, the Group III-A Principal Distribution Amount or the Group
III-B Principal Distribution Amount, as applicable, on such Distribution Date;
and
(iv) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Class M-I-1 Certificates and
the Group III Class A Certificates and any other remaining amounts owing
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to the Certificate Insurer under the Insurance Agreement with respect to the
Class M-I-1 Certificates and the Group III Class A Certificates, in each case,
to the extent not paid pursuant to Section 4.02(a)(2).
(X) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Group III-A
Principal Distribution Amount shall be distributed in the following order of
priority:
(i) to the Holders of the Class A-III-A Certificates, the
Group III-A Allocation Percentage of the Group III Class A Principal
Distribution Amount, until the Certificate Principal Balance thereof has been
reduced to zero;
(ii) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Class A-III-A Certificates and
any other remaining amounts owing to the Certificate Insurer under the Insurance
Agreement with respect to the Class A-III-A Certificates, to the extent not paid
pursuant to Section 4.02(a)(2)(III)(iii);
(iii) concurrently, to the Holders of the Group I Class A
Certificates (allocated among the Group I Class A Certificates in the priority
described below), the Group II Class A Certificates (allocated among the Group
II Class A Certificates in the priority described below) and the Group III-B
Certificates (allocated among the Group III-B Certificates in the priority
described below), on a PRO RATA basis based on the Certificate Principal Balance
of each such group, an amount equal to the excess, if any, of (x) the amount
required to be distributed pursuant to Section 4.02(a)(2)(VIII)(i) (in the case
of the Group I Class A Certificates), Section 4.02(a)(3)(IX)(i) (in the case of
the Group II Class A Certificates) or Section 4.02(a)(3)(XI)(i) (in the case of
the Group III-B Certificates) for such Distribution Date over (y) the amount
actually distributed pursuant to Section 4.02(a)(3)(VIII)(i),Section
4.02(a)(3)(IX)(i) and Section 4.02(a)(3)(XI)(i) from the Group I Principal
Distribution Amount, the Group II Principal Distribution Amount or the Group
III-B Principal Distribution Amount, as applicable, on such Distribution Date;
and
(iv) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for reimbursement for
prior draws made on the Policy in respect of the Class M-I-1 Certificates and
the Group II Class A Certificates and any other remaining amounts owing to the
Certificate Insurer under the Insurance Agreement with respect to the Class
M-I-1 Certificates and the Group II Class A Certificates, in each case, to the
extent not paid pursuant to Section 4.02(a)(2).
(XI) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Group III-B
Principal Distribution Amount shall be distributed in the following order of
priority:
(i) to the Holders of the Group III-B Certificates (allocated
among the Group III-B Certificates in the priority described below), the Group
III-B Allocation Percentage of the Group III Class A Principal Distribution
Amount, until the Certificate Principal Balances thereof have been reduced to
zero;
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(ii) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for
reimbursement for prior draws made on the Policy in respect of the
Group III-B Certificates and any other remaining amounts owing to the
Certificate Insurer under the Insurance Agreement with respect to the
Group III-B Certificates, to the extent not paid pursuant to Section
4.02(a)(2)(IV)(iii);
(iii) concurrently, to the Holders of the Group I Class A
Certificates (allocated among the Group I Class A Certificates in the
priority described below), the Group II Class A Certificates (allocated
among the Group II Class A Certificates in the priority described
below) and the Class A-III-A Certificates, on a PRO RATA basis based on
the Certificate Principal Balance of each such group or Class, an
amount equal to the excess, if any, of (x) the amount required to be
distributed pursuant to Section 4.02(a)(3)(VIII)(i) (in the case of the
Group I Class A Certificates), Section 4.02(a)(3)(IX)(i) (in the case
of the Group II Class A Certificates) or Section 4.02(a)(3)(X)(i) (in
the case of the Class A-III-A Certificates) for such Distribution Date
over (y) the amount actually distributed pursuant to Section
4.02(a)(3)(VIII)(i), Section 4.02(a)(3)(IX)(i) and Section
4.02(a)(3)(X)(i) from the Group I Principal Distribution Amount, the
Group II Principal Distribution Amount or the Group III-A Principal
Distribution Amount, as applicable, on such Distribution Date; and
(iv) to the Certificate Insurer, any remaining amounts owing
to the Certificate Insurer under the Insurance Agreement for
reimbursement for prior draws made on the Policy in respect of the
Class M-I-1 Certificates and the Group II Class A Certificates and any
other remaining amounts owing to the Certificate Insurer under the
Insurance Agreement with respect to the Class M-I-1 Certificates and
the Group II Class A Certificates, in each case, to the extent not paid
pursuant to Section 4.02(a)(2).
(XII) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Group I
Principal Distribution Amount remaining undistributed for such
Distribution Date shall be distributed in the following order of
priority:
(i) to the Holders of the Class M-I-1 Certificates, the Class
M-I-1 Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero;
(ii) to the Holders of the Class M-I-2 Certificates, the Class
M-I-2 Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero;
(iii) to the Holders of the Class B-I Certificates, the Class
B-I Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero.
(XIII) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Group II
Principal Distribution Amount remaining undistributed for such
Distribution Date shall be distributed in the following order of
priority:
(i) to the Holders of the Class M-II Certificates, the Class
M-II Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero; and
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(ii) to the Holders of the Class B-II Certificates, the Class
B-II Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero.
(XIV) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Group III-A
Principal Distribution Amount and the Group III-B Principal
Distribution Amount remaining undistributed for such Distribution Date
shall be distributed in the following order of priority:
(i) to the Holders of the Class M-III Certificates, the Class
M-III Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero; and
(ii) to the Holders of the Class B-III Certificates, the Class
B-III Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero.
With respect to the Group I Class A Certificates, all
principal distributions will be distributed first, to the Holders of the Class
A-I-9 Certificates, the Lockout Distribution Percentage of such principal
distributions, until the Certificate Principal Balance of the Class A-I-9
Certificates has been reduced to zero; second, to the Holders of the Class A-I-1
Certificates, until the Certificate Principal Balance of the Class A-I-1
Certificates has been reduced to zero; third, to the Holders of the Class A-I-2
Certificates until the Certificate Principal Balance of the Class A-I-2
Certificates has been reduced to zero; fourth, to the Holders of the Class A-I-3
Certificates, until the Certificate Principal Balance of the Class A-I-3
Certificates has been reduced to zero; fifth, to the Holders of the Class A-I-4
Certificates, until the Certificate Principal Balance of the Class A-I-4
Certificates has been reduced to zero, sixth, to the Holders of the Class A-I-5
Certificates, until the Certificate Principal Balance of the Class A-I-5
Certificates has been reduced to zero, seventh, to the Holders of the Class
A-I-6 Certificates, until the Certificate Principal Balance of the Class A-I-6
Certificates has been reduced to zero, eighth, to the Holders of the Class A-I-7
Certificates, until the Certificate Principal Balance of the Class A-I-7
Certificates has been reduced to zero, ninth, to the Holders of the Class A-I-8
Certificates, until the Certificate Principal Balance of the Class A-I- 8
Certificates has been reduced to zero and tenth, to the Holders of the Class
A-I-9 Certificates, until the Certificate Principal Balance of the Class A-I-9
Certificates has been reduced to zero; provided, however, on any Distribution
Date on which the aggregate Certificate Principal Balance of the Group I
Mezzanine Certificates and the Class CE-I Certificates has been reduced to zero,
notwithstanding anything contained herein to the contrary, all distributions of
principal to the Group I Class A Certificates will be distributed concurrently,
on a PRO RATA basis based on the Certificate Principal Balance of each such
Class.
With respect to the Group II Class A Certificates, all
principal distributions will be distributed first, to the Holders of the Class
A-II-9 Certificates, the Lockout Distribution Percentage of such principal
distributions, until the Certificate Principal Balance of the Class A-II-9
Certificates has been reduced to zero; second, to the Holders of the Class
A-II-1 Certificates, until the Certificate Principal Balance of the Class A-II-1
Certificates has been reduced to zero; third, to the Holders of the Class A-II-2
Certificates until the Certificate Principal Balance of the Class A-II-2
Certificates has been reduced to zero; fourth, to the Holders of the Class
A-II-3 Certificates, until the Certificate Principal Balance of the Class A-II-3
Certificates has been reduced to zero; fifth, to the Holders of the Class A-II-4
Certificates, until the
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Certificate Principal Balance of the Class A-II-4 Certificates has been reduced
to zero, sixth, to the Holders of the Class A-II-5 Certificates, until the
Certificate Principal Balance of the Class A-II-5 Certificates has been reduced
to zero, seventh, to the Holders of the Class A-II-6 Certificates, until the
Certificate Principal Balance of the Class A-II-6 Certificates has been reduced
to zero, eighth, to the Holders of the Class A-II-7 Certificates, until the
Certificate Principal Balance of the Class A-II-7 Certificates has been reduced
to zero, ninth, to the Holders of the Class A-II-8 Certificates, until the
Certificate Principal Balance of the Class A-II-8 Certificates has been reduced
to zero and tenth, to the Holders of the Class A-II-9 Certificates, until the
Certificate Principal Balance of the Class A-II-9 Certificates has been reduced
to zero; provided, however, on any Distribution Date on which the aggregate
Certificate Principal Balance of the Group II Mezzanine Certificates and the
Class CE-II Certificates has been reduced to zero, notwithstanding anything
contained herein to the contrary, all distributions of principal to the Group II
Class A Certificates will be distributed concurrently, on a PRO RATA basis based
on the Certificate Principal Balance of each such Class.
With respect to the Group III-B Certificates, all principal
distributions will be distributed first, to the Holders of the Class A-III-B1
Certificates, until the Certificate Principal Balance of the Class A-III-B1
Certificates has been reduced to zero and second, to the Holders of the Class
A-III-B2 Certificates until the Certificate Principal Balance of the Class
A-III-B2 Certificates has been reduced to zero; provided, however, on any
Distribution Date on which the aggregate Certificate Principal Balance of the
Group III Subordinate Certificates has been reduced to zero, notwithstanding
anything contained herein to the contrary, all distributions of principal to the
Group III-B Certificates will be distributed concurrently, on a PRO RATA basis
based on the Certificate Principal Balance of each such Class.
(4)(a) On each Distribution Date, the Group I Net Monthly
Excess Cashflow shall be distributed by the Trustee as follows:
(i) to the Holders of the Class or Classes of Certificates
then entitled to receive distributions in respect of principal, as
part of the Group I Principal Distribution Amount in an amount equal
to the Group I Overcollateralization Increase Amount for the
Certificates, applied to reduce the Certificate Principal Balance of
such Certificates until the aggregate Certificate Principal Balance of
such Certificates is reduced to zero;
(ii) after taking into account the amount distributed pursuant
to Section 4.01(4)(b)(i) and Section 4.01(c)(i) on such Distribution
Date, to the Holders of the Class or Classes of Certificates then
entitled to receive distributions in respect of principal, as part of
the Group II Principal Distribution Amount, the Group III-A Principal
Distribution Amount or the Group III-B Principal Distribution Amount,
applied to reduce the Certificate Principal Balance of such
Certificates until the aggregate Certificate Principal Balance of such
Certificates is reduced to zero;
(iii) to the holders of the Class M-I-1 Certificates, in an
amount equal to the Allocated Realized Loss Amount allocable to such
Certificates;
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(iv) to the Holders of the Class M-I-2 Certificates, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(v) to the Holders of the Class M-I-2 Certificates, in an
amount equal to the Allocated Realized Loss Amount allocable to such
Certificates;
(vi) to the Holders of the Class B-I Certificates, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(vii) to the Holders of the Class B-I Certificates, in an
amount equal to the Allocated Realized Loss Amount allocable to such
Certificates;
(viii) concurrently, to the Holders of each Class of Group I
Class A Certificates, on a PRO RATA basis based on the entitlement of
each such Class, in an amount equal to the aggregate of any Prepayment
Interest Shortfalls and any Relief Act Interest Shortfall on the
Mortgage Loans allocated to such Certificates, PRO RATA based on the
entitlement of each such Class, in each case, without interest accrued
thereon;
(ix) sequentially, to the Holders of the Class M-I-1
Certificates, the Class M-I-2 Certificates and the Class B-I
Certificates, in that order, in an amount equal to the aggregate of any
Prepayment Interest Shortfalls and any Relief Act Interest Shortfall on
the Mortgage Loans allocated to such Certificates, in each case,
without interest accrued thereon;
(x) after taking into account the amount distributed pursuant
to Section 4.01(a)(4)(b)(ix) and Section 4.01(a)(4)(c)(ix) below on
such distribution date, to the Holders of the Group II Class A
Certificates, the Group II Mezzanine Certificates, the Group III Class
A Certificates and the Group III Mezzanine Certificates, in an amount
equal to such Certificates' remaining allocated share of any Prepayment
Interest Shortfalls and any shortfalls resulting from the application
of the Relief Act or similar state laws, in each case, without interest
accrued thereon, allocated among the classes in each group in the same
manner as distributions of such amounts are allocated from the related
Net Monthly Excess Cashflow;
(xi) to the Group I Net WAC Rate Carryover Reserve Account,
the amount by which the aggregate Net WAC Rate Carryover Amount for the
Group I Class A Certificates and the Group I Mezzanine Certificates for
such Distribution Date exceeds the amounts received by the Trustee
under the Class A-I-1 Cap Contract;
(xii) to the Holders of the Class CE-I Certificates, (a) the
Interest Distribution Amount and any remaining Group I
Overcollateralization Reduction Amount for such Distribution Date and
(b) on any Distribution Date on which the aggregate Certificate
Principal Balance of the Group I Class A Certificates and the Group I
Mezzanine Certificates have been reduced to zero, any remaining amounts
in reduction of the Certificate Principal Balance of the Class C-I
Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; and
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(xiii) to the Holders of the Class R-I Certificates, any
remaining amounts; provided that if such Distribution Date is the
Distribution Date immediately following the expiration of the latest
Prepayment Charge term on a Group I Mortgage Loan as identified on the
Mortgage Loan Schedule or any Distribution Date thereafter, then any
such remaining amounts will be distributed first, to the Holders of the
Class P-I Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; and second, to the Holders of the Class R-I
Certificates.
(b) On each Distribution Date, the Group II Net Monthly Excess
Cashflow shall be distributed by the Trustee as follows:
(i) to the Holders of the Class or Classes of Certificates
then entitled to receive distributions in respect of principal, as part
of the Group II Principal Distribution Amount in an amount equal to the
Group II Overcollateralization Increase Amount for the Certificates,
applied to reduce the Certificate Principal Balance of such
Certificates until the aggregate Certificate Principal Balance of such
Certificates is reduced to zero;
(ii) after taking into account the amount distributed pursuant
to Section 4.01(4)(a)(i) and Section 4.01(c)(i) on such Distribution
Date, to the Holders of the Class or Classes of Certificates then
entitled to receive distributions in respect of principal, as part of
the Group I Principal Distribution Amount, the Group III-A Principal
Distribution Amount or the Group III-B Principal Distribution Amount,
applied to reduce the Certificate Principal Balance of such
Certificates until the aggregate Certificate Principal Balance of such
Certificates is reduced to zero;
(iii) to the Holders of the Class M-II Certificates, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(iv) to the Holders of the Class M-II Certificates, in an
amount equal to the Allocated Realized Loss Amount allocable to such
Certificates;
(v) to the Holders of the Class B-II Certificates, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(vi) to the Holders of the Class B-II Certificates, in an
amount equal to the Allocated Realized Loss Amount allocable to such
Certificates;
(vii) concurrently, to the Holders of each Class of Group II
Class A Certificates, on a PRO RATA basis based on the entitlement of
each such Class, in an amount equal to the aggregate of any Prepayment
Interest Shortfalls and any Relief Act Interest Shortfall on the
Mortgage Loans allocated to such Certificates, PRO RATA based on the
entitlement of each such Class, in each case, without interest accrued
thereon;
(viii) sequentially, to the Holders of the Class M-II
Certificates and the Class B-II Certificates, in that order, in an
amount equal to the aggregate of any Prepayment Interest Shortfalls
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and any Relief Act Interest Shortfall on the Mortgage Loans allocated
to such Certificates, in each case, without interest accrued thereon;
(ix) after taking into account the amount distributed pursuant
to Section 4.01(a)(4)(a)(ix) and Section 4.01(a)(4)(c)(ix) on such
distribution date, to the Holders of the Group I Class A Certificates,
the Group I Mezzanine Certificates, the Group III Class A Certificates
and the Group III Mezzanine Certificates, in an amount equal to such
Certificates' remaining allocated share of any Prepayment Interest
Shortfalls and any shortfalls resulting from the application of the
Relief Act or similar state laws, in each case, without interest
accrued thereon, allocated among the classes in each group in the same
manner as distributions of such amounts are allocated from the related
Net Monthly Excess Cashflow;
(x) to the Group II Net WAC Rate Carryover Reserve Account,
the amount by which the aggregate Net WAC Rate Carryover Amount for the
Group II Class A Certificates and the Group II Mezzanine Certificates
for such Distribution Date exceeds the amounts received by the Trustee
under the Class A-II-1 Cap Contract;
(xi) to the Holders of the Class CE-II Certificates, (a) the
Interest Distribution Amount and any remaining Group II
Overcollateralization Reduction Amount for such Distribution Date and
(b) on any Distribution Date on which the aggregate Certificate
Principal Balance of the Group II Class A Certificates and the Group II
Mezzanine Certificates have been reduced to zero, any remaining amounts
in reduction of the Certificate Principal Balance of the Class CE-II
Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; and
(xii) to the Holders of the Class R-II Certificates, any
remaining amounts; provided that if such Distribution Date is the
Distribution Date immediately following the expiration of the latest
Prepayment Charge term on a Group II Mortgage Loan as identified on the
Mortgage Loan Schedule or any Distribution Date thereafter, then any
such remaining amounts will be distributed first, to the Holders of the
Class P-II Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; and second, to the Holders of the
Class R-II Certificates.
(c) On each Distribution Date, the Group III Net Monthly
Excess Cashflow shall be distributed by the Trustee as follows:
(i) to the Holders of the Class or Classes of Certificates
then entitled to receive distributions in respect of principal, as part
of the Group III Principal Distribution Amount in an amount equal to
the Group III Overcollateralization Increase Amount for the
Certificates, applied to reduce the Certificate Principal Balance of
such Certificates until the aggregate Certificate Principal Balance of
such Certificates is reduced to zero;
(ii) after taking into account the amount distributed pursuant
to Section 4.01(4)(a)(i) and Section 4.01(b)(i) on such Distribution
Date, to the Holders of the Class or Classes of Certificates then
entitled to receive distributions in respect of principal, as part of
the Group I
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Principal Distribution Amount or the Group II Principal Distribution
Amount, applied to reduce the Certificate Principal Balance of such
Certificates until the aggregate Certificate Principal Balance of such
Certificates is reduced to zero;
(iii) to the Holders of the Class M-III Certificates, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(iv) to the Holders of the Class M-III Certificates, in an
amount equal to the Allocated Realized Loss Amount allocable to such
Certificates;
(v) to the Holders of the Class B-III Certificates, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(vi) to the Holders of the Class B-III Certificates, in an
amount equal to the Allocated Realized Loss Amount allocable to such
Certificates;
(vii) concurrently, to the Holders of each Class of Group III
Class A Certificates, on a PRO RATA basis based on the entitlement of
each such Class, in an amount equal to the aggregate of any Prepayment
Interest Shortfalls and any Relief Act Interest Shortfall on the
Mortgage Loans allocated to such Certificates, PRO RATA based on the
entitlement of each such Class, in each case, without interest accrued
thereon;
(viii) sequentially, to the Holders of the Class M-III
Certificates and the Class B-III Certificates, in that order, in an
amount equal to the aggregate of any Prepayment Interest Shortfalls and
any Relief Act Interest Shortfall on the Mortgage Loans allocated to
such Certificates, in each case, without interest accrued thereon;
(ix) after taking into account the amount distributed pursuant
to Section 4.01(a)(4)(a)(ix) and Section 4.01(a)(4)(b)(ix) on such
distribution date, to the Holders of the Group I Class A Certificates,
the Group I Mezzanine Certificates, the Group II Class A Certificates
and the Group II Mezzanine Certificates, in an amount equal to such
Certificates' remaining allocated share of any Prepayment Interest
Shortfalls and any shortfalls resulting from the application of the
Relief Act or similar state laws, in each case, without interest
accrued thereon, allocated among the classes in each group in the same
manner as distributions of such amounts are allocated from the related
Net Monthly Excess Cashflow;
(x) to the Group III Net WAC Rate Carryover Reserve Account,
the amount by which the aggregate Net WAC Rate Carryover Amount for the
Group III Class A Certificates and the Group III Mezzanine Certificates
for such Distribution Date exceeds the amounts received by the Trustee
under the Class A-III-A Cap Contract, the Class A-III-B2/3 Cap Contract
and the Group III Mezzanine Cap Contract;
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(xi) to the Holders of the Class CE-III Certificates, (a) the
Interest Distribution Amount and any remaining Group III
Overcollateralization Reduction Amount for such Distribution Date and
(b) on any Distribution Date on which the aggregate Certificate
Principal Balance of the Group III Class A Certificates and the Group
III Mezzanine Certificates have been reduced to zero, any remaining
amounts in reduction of the Certificate Principal Balance of the Class
CE-III Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; and
(xii) to the Holders of the Class R-III Certificates, any
remaining amounts; provided that if such Distribution Date is the
Distribution Date immediately following the expiration of the latest
Prepayment Charge term on a Group III Mortgage Loan as identified on
the Mortgage Loan Schedule or any Distribution Date thereafter, then
any such remaining amounts will be distributed first, to the Holders of
the Class P-III Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; and second, to the Holders of the
Class R-III Certificates.
Following the foregoing distributions, an amount equal to the
amount of Subsequent Recoveries deposited into the related Collection Account
pursuant to Section 3.10 shall be applied to increase the Certificate Principal
Balance of the Class of Certificates with the Highest Priority up to the extent
of such Realized Losses previously allocated to that Class of Certificates
pursuant to Section 4.04. An amount equal to the amount of any remaining
Subsequent Recoveries shall be applied to increase the Certificate Principal
Balance of the Class of Certificates with the next Highest Priority, up to the
amount of such Realized Losses previously allocated to that Class of
Certificates pursuant to Section 4.04. Holders of such Certificates will not be
entitled to any distribution in respect of interest on the amount of such
increases for any Interest Accrual Period preceding the Distribution Date on
which such increase occurs. Any such increases shall be applied to the
Certificate Principal Balance of each Certificate of such Class in accordance
with its respective Percentage Interest.
(b)(1) On each Distribution Date, after making the
distributions of the Group I Available Distribution Amount as set forth above,
the Trustee will withdraw from the Group I Net WAC Rate Carryover Reserve
Account, the Group II Net WAC Rate Carryover Reserve Account and the Group III
Net WAC Rate Carryover Reserve Account, to the extent of amounts remaining on
deposit therein, the amount of any Net WAC Rate Carryover Amount with respect to
the Class A Certificates and the Mezzanine Certificates for such Distribution
Date and distribute such amount in the following order of priority:
(i) any amounts received by the Trustee in respect of
the Class A-I-1 Cap Contract will be distributed to the Holders of the
Class A-I-1 Certificates, to the extent of the Net WAC Rate Carryover
Amount for such Distribution Date;
(ii) any amounts received by the Trustee in respect
of the Class A-II-1 Cap Contract will be distributed to the Holders of
the Class A-II-1 Certificates, to the extent of the Net WAC Rate
Carryover Amount for such Distribution Date;
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(iii) any amounts received by the Trustee in respect
of the Group III Cap Contract will be distributed to the Group III
Class A Certificates and the Group III Mezzanine Certificates, to the
extent of the Net WAC Rate Carryover Amount for such Distribution Date,
in the following order: concurrently, to the Class A-III-A Certificates
(in an amount equal to the Group III-A Allocation Percentage of all
such amounts) and the Group III-B Certificates (in an amount equal to
the Group III-B Allocation Percentage of all such amounts) and
sequentially, to the Class M-III Certificates and the Class B-III
Certificates, in that order, any remaining amounts;
(vi) any amounts deposited in (a) the Group I Net WAC
Carryover Reserve Account from the Group I Net Monthly Excess Cashflow,
(b) the Group II Net WAC Carryover Reserve Account from the Group II
Net Monthly Excess Cashflow and (c) the Group III Net WAC Carryover
Reserve Account from the Group III Net Monthly Excess Cashflow will be
distributed as follows, in each case to the extent of the applicable
Net WAC Rate Carryover Amount:
(a) concurrently to each Class of related
Class A Certificates, on a PRO RATA basis based on
the Net WAC Rate Carryover Amount for each such
Class;
(ii) to the related Class M Certificates, to
the extent of the Net WAC Rate Carryover Amount for
each such Class; and
(iii) to the related Class B Certificates,
to the extent of the Net WAC Rate Carryover Amount
for each such Class.
On each Distribution Date, the Trustee shall withdraw (i) any
amounts then on deposit in the Distribution Account that represent Prepayment
Charges collected by the related Servicer in connection with the Principal
Prepayment of any of the Group I Mortgage Loans or any Servicer Prepayment
Charge Payment Amount in respect of the Group I Mortgage Loans and shall
distribute such amounts to the Holders of the Class P-I Certificates, (ii) any
amounts then on deposit in the Distribution Account that represent Prepayment
Charges collected by the related Servicer in connection with the Principal
Prepayment of any of the Group II Mortgage Loans or any Servicer Prepayment
Charge Payment Amount in respect of the Group II Mortgage Loans and shall
distribute such amounts to the Holders of the Class P-II Certificates and (ii)
any amounts then on deposit in the Distribution Account that represent
Prepayment Charges collected by the related Servicer in connection with the
Principal Prepayment of any of the Group III Mortgage Loans or any Servicer
Prepayment Charge Payment Amount in respect of the Group III Mortgage Loans and
shall distribute such amounts to the Holders of the Class P-III Certificates.
Such distributions shall not be applied to reduce the Certificate Principal
Balance of the Class P Certificates.
(c) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated PRO RATA among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Payments in respect of each Class of Certificates on each
Distribution Date shall be made to the Holders of the respective Class of record
on the related Record Date (except as otherwise provided in Section 4.01(e) or
Section 9.01 respecting the final distribution on such Class), based on the
aggregate Percentage Interest represented by their respective Certificates, and
shall
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be made by wire transfer of immediately available funds to the account of any
such Holder at a bank or other entity having appropriate facilities therefor, if
such Holder shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date, or
otherwise by check mailed by first Class mail to the address of such Holder
appearing in the Certificate Register. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee maintained for such
purpose pursuant to Section 8.12 or such other location specified in the notice
to Certificateholders of such final distribution.
Payments to the Guarantor on each Distribution Date will be
made by wire transfer of immediately available funds to the following Federal
Reserve Account:
Telegraphic: FNMA NYC
ABA: 000-000-000
Ref: 2004-T4
Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Depositor
or either Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
(d) The rights of the Certificateholders to receive
distributions in respect of the Certificates, and all interests of the
Certificateholders in such distributions, shall be as set forth in this
Agreement. None of the Holders of any Class of Certificates, the Trustee or
either Servicer shall in any way be responsible or liable to the Holders of any
other Class of Certificates in respect of amounts properly previously
distributed on the Certificates.
(e) On each Distribution Date, following the distributions
made pursuant to Section 4.01(a)(2), Section 4.01(a)(3) and Section 4.01(a)(4),
the Trustee shall withdraw from the Distribution Account the amount of any
Insured Amount for such Distribution Date and shall distribute such Insured
Amount to the Holders of the Insured Certificates.
(f) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Trustee shall, no
later than three (3) days before the related Distribution Date (to the extent
that an accurate Remittance Report is received in a timely manner by the
Trustee), mail to each Holder on such date of such Class of Certificates, the
Guarantor and the Certificate Insurer a notice to the effect that:
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(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at
the office of the Trustee therein specified, and
(ii) no interest shall accrue on such Certificates from and
after the end of the related Interest Accrual Period; provided that
such notice shall be sent to the Guarantor only with respect to the
Guaranteed Certificates.
Any funds not distributed to any Holder or Holders of
Certificates of such Class on such Distribution Date because of the failure of
such Holder or Holders to tender their Certificates shall, on such date, be set
aside and held in trust by the Trustee and credited to the account of the
appropriate non- tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 4.01(e) shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee shall, directly or through an agent, mail a final
notice to the remaining non-tendering Certificateholders concerning surrender of
their Certificates but shall continue to hold any remaining funds for the
benefit of non-tendering Certificateholders. The costs and expenses of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets remaining in the Trust Fund. If within one year after
the final notice any such Certificates shall not have been surrendered for
cancellation, the Trustee shall pay to Bear, Xxxxxxx & Co. Inc., in accordance
with its wiring instructions, all such amounts, and all rights of non-tendering
Certificateholders in or to such amounts shall thereupon cease. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trustee as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section
4.01(e). Any such amounts held in trust by the Trustee shall be held in an
Eligible Account and shall be held uninvested.
(g) Notwithstanding anything to the contrary herein, (i) in no
event shall the Certificate Principal Balance of a Class A Certificate, a
Mezzanine Certificate or a Class B Certificate be reduced more than once in
respect of any particular amount both (a) allocated to such Certificate in
respect of Realized Losses pursuant to Section 4.04 and (b) distributed to the
Holder of such Certificate in reduction of the Certificate Principal Balance
thereof pursuant to this Section 4.01 from Net Monthly Excess Cashflow and (ii)
in no event shall the Uncertificated Balance of a REMIC I Regular Interest be
reduced more than once in respect of any particular amount both (a) allocated to
such REMIC I Regular Interest in respect of Realized Losses pursuant to Section
4.04 and (b) distributed on such REMIC I Regular Interest in reduction of the
Uncertificated Balance thereof pursuant to this Section 4.01.
SECTION 4.02. Statements to Certificateholders.
On each Distribution Date, the Trustee shall prepare and make
available via its website to each Holder of the Regular Certificates, the
Guarantor and the Certificate Insurer, a statement as to the distributions made
on such Distribution Date setting forth:
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(i) the amount of the distribution made on such Distribution
Date to the Holders of the Certificates of each Class allocable to
principal, and the amount of the distribution made on such Distribution
Date to the Holders of the Class P Certificates allocable to Prepayment
Charges;
(ii) the amount of the distribution made on such Distribution
Date to the Holders of the Certificates of each Class allocable to
interest;
(iii) the aggregate Servicing Fee received by each Servicer
during the related Due Period and such other customary information as
the Trustee deems necessary or desirable, or which a Certificateholder
reasonably requests, to enable Certificateholders to prepare their tax
returns;
(iv) the aggregate amount of P&I Advances for such
Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage
Loans and any REO Properties as of the close of business on such
Distribution Date;
(vi) 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;
(vii) the number and aggregate unpaid principal balance of
Mortgage Loans (a) delinquent 30 to 59 days, (b) delinquent 60 to 89
days, (c) delinquent 90 or more days, in each case, as of the last day
of the preceding calendar month, (d) as to which foreclosure
proceedings have been commenced and (e) with respect to which the
related Mortgagor has filed for protection under applicable bankruptcy
laws, with respect to whom bankruptcy proceedings are pending or with
respect to whom bankruptcy protection is in force;
(viii) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the loan number of such
Mortgage Loan, the unpaid principal balance and the Stated Principal
Balance of such Mortgage Loan as of the date it became an REO Property;
(ix) the book value of any REO Property as of the close of
business on the last Business Day of the calendar month preceding the
Distribution Date;
(x) the aggregate amount of Principal Prepayments made during
the related Prepayment Period;
(xi) the aggregate amount of Realized Losses incurred during
the related Prepayment Period (or, in the case of Bankruptcy Losses
allocable to interest, during the related Due Period), separately
identifying whether such Realized Losses constituted Bankruptcy Losses
and the aggregate amount of Realized Losses incurred since the Closing
Date and the aggregate amount
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of Subsequent Recoveries received during the related Prepayment Period
and the cumulative amount of Subsequent Recoveries received since the
Closing Date;
(xii) the aggregate amount of Extraordinary Trust Fund
Expenses withdrawn from the related Collection Account or the
Distribution Account for such Distribution Date;
(xiii) the aggregate Certificate Principal Balance and
Notional Amount, as applicable, of each Class of Certificates, after
giving effect to the distributions, and allocations of Realized Losses,
made on such Distribution Date, separately identifying any reduction
thereof due to (a) the receipt of an Insured Amount in respect of
principal (in the case of the Class A Certificates) or (b) allocations
of Realized Losses;
(xiv) the Certificate Factor for each such Class of
Certificates applicable to such Distribution Date;
(xv) the Interest Distribution Amount in respect of the Class
A Certificates, the Mezzanine Certificates and the Class CE
Certificates for such Distribution Date and the Interest Carry Forward
Amount, if any, with respect to the Class A Certificates and the
Mezzanine Certificates on such Distribution Date, and in the case of
the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates, separately identifying any reduction thereof due to
allocations of Realized Losses, Prepayment Interest Shortfalls and
Relief Act Interest Shortfalls;
(xvi) the aggregate amount of any Prepayment Interest
Shortfall for such Distribution Date, to the extent not covered by
payments by the Servicers pursuant to Section 3.24;
(xvii) the aggregate amount of Relief Act Interest Shortfalls
for such Distribution Date;
(xviii) the Group I Overcollateralization Target Amount, the
Group II Overcollateralization Target Amount and the Group III
Overcollateralization Target Amount and the Group I Credit Enhancement
Percentage, the Group II Credit Enhancement Percentage and the the
Group I Credit Enhancement Percentage for such Distribution Date;
(xix) the Group I Overcollateralization Increase Amount, if
any, for such Distribution Date, the Group II Overcollateralization
Increase Amount, if any, for such Distribution Date and the Group III
Overcollateralization Increase Amount, if any, for such Distribution
Date;
(xx) the Group I Overcollateralization Reduction Amount, if
any, for such Distribution Date, the Group II Overcollateralization
Reduction Amount, if any, for such Distribution Date and the Group III
Overcollateralization Reduction Amount, if any, for such Distribution
Date;
(xxi) the respective Pass-Through Rates applicable to the
Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates for such Distribution Date and the Pass-
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Through Rate applicable to the Class A Certificates and the Mezzanine
Certificates for the immediately succeeding Distribution Date;
(xxii) the Net WAC Rate Carryover Amount for the Class A
Certificates and the Mezzanine Certificates, if any, for such
Distribution Date and the amount remaining unpaid after reimbursements
therefor on such Distribution Date;
(xxiii) the amount of any Insured Amount for such Distribution
Date, separately identifying the portion of such payment allocable to
interest and principal;
(xxiv) the amount of the Reimbursement Amount for such
Distribution Date and the amount received by the Certificate Insurer in
respect thereof on such Distribution Date;
(xxv) the Guarantor Deficiency Amount, the Guarantor Payments
and the Guarantor Reimbursement Amount for such Distribution Date;
(xxvi) the Guaranty Fee to be paid to the Guarantor with
respect to the Guaranteed Certificates for such Distribution Date; and
(xxvii) such other information as the Guarantor or the
Certificate Insurer may reasonably request in such format as reasonably
required by the Guarantor or the Certificate Insurer and any other
information that is required by the Code and regulations thereunder to
be made available to Certificateholders.
The Trustee shall make such statement (and, at its option, any
additional files containing the same information in an alternative format)
available each month to Certificateholders, each Servicer, the Certificate
Insurer, the Guarantor and the Rating Agencies via the Trustee's internet
website. The Trustee's internet website shall initially be located at
xxxxx://xxx.xxxxxxxxxxxxxx.xx.xxx/xxxx and assistance in using the website can
be obtained by calling the Trustee's customer service desk at 0-000-000-0000.
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 Trustee shall have the right to change the
way such statements are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Trustee shall
provide timely and adequate notification to all above parties regarding any such
changes.
In the case of information furnished pursuant to subclauses
(i) through (iii) above, the amounts shall be expressed as a dollar amount per
Single Certificate of the relevant Class.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish to each Person who at any time during
the calendar year was a Holder of a Regular Certificate a statement containing
the information set forth in subclauses (i) through (iii) above, aggregated for
such calendar year or applicable portion thereof during which such person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable
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information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time are in force.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish to each Person who at any time during
the calendar year was a Holder of a Residual Certificate a statement setting
forth the amount, if any, actually distributed with respect to the Residual
Certificates, as appropriate, aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder.
The Trustee shall, upon request, furnish to each
Certificateholder, during the term of this Agreement, such periodic, special, or
other reports or information, whether or not provided for herein, as shall be
reasonable with respect to the Certificateholder, or otherwise with respect to
the purposes of this Agreement, all such reports or information to be provided
at the expense of the Certificateholder in accordance with such reasonable and
explicit instructions and directions as the Certificateholder may provide. For
purposes of this Section 4.02, the Trustee's duties are limited to the extent
that the Trustee receives timely reports as required from each Servicer.
On each Distribution Date the Trustee shall provide Bloomberg
Financial Markets, L. P. (" Bloomberg") CUSIP level factors for each Class of
Certificates as of such Distribution Date, using a format and media mutually
acceptable to the Trustee and Bloomberg.
On the fourth Business Day preceding each Distribution Date,
the Trustee shall deliver to the Guarantor (by electronic medium as specified in
the next sentence) a statement identifying the Certificate Factor for each Class
of Certificates. The Trustee shall deliver such statement on or before 12:00
noon (New York time) on such day via the internet using the following domain
name: xxxx_xxxxx@xxxxxxxxx.xxx. If a Guarantor Payment will be payable on a
Distribution Date, all information required under Section 4.02 must also be
similarly delivered to Guarantor on such third Business Day proceeding such
Distribution Date. The second consecutive failure by the Trustee to deliver the
Certificate Factor (or to deliver an accurate Certificate Factor) to the
Guarantor shall constitute an event of default and permit the Guarantor, whether
or not the Guarantor is the Controlling Person at such time, to remove the
Trustee for cause; provided that the Servicers had delivered an accurate
Remittance Report for the related Distribution Date to the Trustee pursuant to
Section 4.03.
SECTION 4.03. Remittance Reports; P&I Advances.
(a) On the Business Day following each Determination Date,
each Servicer shall deliver to the Trustee, the Guarantor and the Certificate
Insurer by telecopy (or by such other means as the related Servicer, the
Trustee, the Guarantor or the Certificate Insurer, as the case may be, may agree
from time to time) a Remittance Report with respect to the related Distribution
Date. All such reports shall be delivered to the Guarantor as specified in the
Guarantor's Lender Guide, as amended from time to time. On the same date, each
Servicer shall electronically transmit (in a format acceptable to the Trustee),
a data file containing the information set forth in such Remittance Report with
respect to the related Distribution Date or if electronic transmission is not
available, the related Servicer shall forward to the Trustee by
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overnight mail a computer readable magnetic tape. Such Remittance Report will
include (i) the amount of P&I Advances to be made by the related Servicer in
respect of the related Distribution Date, the aggregate amount of P&I Advances
outstanding after giving effect to such P&I Advances, and the aggregate amount
of Nonrecoverable P&I Advances in respect of such Distribution Date and (ii)
such other information with respect to the Mortgage Loans as the Trustee may
reasonably require to perform the calculations necessary to make the
distributions contemplated by Section 4.01 and to prepare the statements to
Certificateholders contemplated by Section 4.02. Not later than each Servicer
Remittance Date (or, in the case of certain information, as agreed between the
Trustee and the related Servicer, not later than four Business Days after the
end of each Due Period), each Servicer shall deliver or cause to be delivered to
the Trustee in addition to the information provided on the Remittance Report,
such other information reasonably available to it with respect to the Mortgage
Loans as the Trustee may reasonably require to perform the calculations
necessary to make the distributions contemplated by Section 4.01 and to prepare
the statements to Certificateholders contemplated by Section 4.02. The Trustee
shall not be responsible to recompute, recalculate or verify any information
provided to it by either Servicer.
(b) The amount of P&I Advances to be made by each Servicer for
any Distribution Date shall equal, subject to Section 4.03(d), the sum of, with
respect to the Mortgage Loans serviced by such Servicer, (i) the aggregate
amount of Monthly Payments (with each interest portion thereof net of the
related Servicing Fee), due on the related Due Date in respect of the Mortgage
Loans, which Monthly Payments were delinquent as of the close of business on the
related Determination Date and (ii) with respect to each REO Property, which REO
Property was acquired during or prior to the related Prepayment Period and as to
which REO Property an REO Disposition did not occur during the related
Prepayment Period, an amount equal to the excess, if any, of the REO Imputed
Interest on such REO Property for the most recently ended calendar month, over
the net income from such REO Property transferred to the Distribution Account
pursuant to Section 3.23 for distribution on such Distribution Date; provided,
however, that neither Servicer shall not be required to make P&I Advances with
respect to Relief Act Interest Shortfalls or Prepayment Interest Shortfalls in
excess of their respective obligations under Section 3.24.
By 3:00 p.m. New York time on the Servicer Remittance Date,
each Servicer shall remit in immediately available funds to the Trustee for
deposit in the Distribution Account an amount equal to the aggregate amount of
P&I Advances, if any, to be made by such Servicer in respect of the Mortgage
Loans and REO Properties for the related Distribution Date either (i) from its
own funds or (ii) from the related Collection Account, to the extent of funds
held therein for future distribution (in which case it will cause to be made an
appropriate entry in the records of the related Collection Account that amounts
held for future distribution have been, as permitted by this Section 4.03, used
by the related Servicer in discharge of any such P&I Advance) or (iii) in the
form of any combination of (i) and (ii) aggregating the total amount of P&I
Advances to be made by such Servicer with respect to the Mortgage Loans and REO
Properties. Any amounts held for future distribution and so used shall be
appropriately reflected in the applicable Servicer's records and replaced by
such Servicer by deposit in the related Collection Account on or before any
future Servicer Remittance Date to the extent that the Available Distribution
Amount for the related Distribution Date (determined without regard to P&I
Advances to be made on the Servicer Remittance Date) shall be less than the
total amount that would be distributed to the Classes of Certificateholders
pursuant to Section
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4.01 on such Distribution Date if such amounts held for future distributions had
not been so used to make P&I Advances. The Trustee will provide notice to the
related Servicer, the Guarantor and the Certificate Insurer by telecopy by the
close of business on the Business Day prior to the Distribution Date (so long as
the Trustee receives the required remittance from the related Servicer) in the
event that the amount remitted by the Servicer to the Trustee on such date is
less than the amount required to be remitted by such Servicer as set forth in
the Remittance Report for the related Distribution Date.
(c) The obligation of each Servicer to make such P&I Advances
is mandatory, notwithstanding any other provision of this Agreement but subject
to (d) below, and, with respect to any Mortgage Loan or REO Property, shall
continue until a Final Recovery Determination in connection therewith or the
removal thereof from the Trust Fund pursuant to any applicable provision of this
Agreement, except as otherwise provided in this Section.
(d) Notwithstanding anything herein to the contrary, no P&I
Advance or Servicing Advance shall be required to be made hereunder by either
Servicer if such P&I Advance or Servicing Advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, respectively.
The determination by the related Servicer that it has made a Nonrecoverable P&I
Advance or a Nonrecoverable Servicing Advance or that any proposed P&I Advance
or Servicing Advance, if made, would constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, respectively, shall be evidenced by an
Officers' Certificate of such Servicer delivered to the Depositor, the
Certificate Insurer, the Guarantor and the Trustee.
SECTION 4.04. Allocation of Realized Losses.
(a) Prior to each Determination Date, each Servicer shall
determine as to each Mortgage Loan and REO Property: (i) the total amount of
Realized Losses, if any, incurred in connection with any Final Recovery
Determinations made during the related Prepayment Period; (ii) whether and the
extent to which such Realized Losses constituted Bankruptcy Losses; and (iii)
the respective portions of such Realized Losses allocable to interest and
allocable to principal. Prior to each Determination Date, each Servicer shall
also determine as to each Mortgage Loan: (i) the total amount of Realized
Losses, if any, incurred in connection with any Deficient Valuations made during
the related Prepayment Period; and (ii) the total amount of Realized Losses, if
any, incurred in connection with Debt Service Reductions in respect of Monthly
Payments due during the related Due Period. The information described in the two
preceding sentences that is to be supplied by a Servicer shall be evidenced by
an Officers' Certificate delivered to the Trustee, the Certificate Insurer and
the Guarantor by the related Servicer prior to the Determination Date
immediately following the end of (i) in the case of Bankruptcy Losses allocable
to interest, the Due Period during which any such Realized Loss was incurred,
and (ii) in the case of all other Realized Losses, the Prepayment Period during
which any such Realized Loss was incurred.
(b) All Realized Losses on the Group I Mortgage Loans shall be
allocated by the Trustee on each Distribution Date as follows: first, to the
Accrued Certificate Interest for the Class CE-I Certificates for the related
Interest Accrual Period; second, to the Accrued Certificate Interest for the
Class CE-II Certificates and the Class CE-III Certificates for the related
Interest Accrual Period, on a PRO RATA
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basis based on the Accrued Certificate Interest for each such Class, third, to
the Class CE-I Certificates, until the Certificate Principal Balance thereof has
been reduced to zero; fourth, to the Class CE-II Certificates and the Class
CE-III Certificates, on a PRO RATA basis based on the Certificate Principal
Balance of each such Class, fifth, to the Class B-I Certificates until the
Certificate Principal Balance thereof has been reduced to zero; sixth, to the
Class M-I-2 Certificates, until the Certificate Principal Balance thereof has
been reduced to zero and seventh, to the Class M-I-1 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero.
All Realized Losses on the Group II Mortgage Loans shall be
allocated by the Trustee on each Distribution Date as follows: first, to the
Accrued Certificate Interest for the Class CE-II Certificates for the related
Interest Accrual Period; second, to the Accrued Certificate Interest for the
Class CE-I Certificates and the Class CE-III Certificates for the related
Interest Accrual Period, on a PRO RATA basis based on the Accrued Certificate
Interest for each such Class, third, to the Class CE-II Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; fourth, to the
Class CE-I Certificates and the Class CE-III Certificates, on a PRO RATA basis
based on the Certificate Principal Balance of each such Class, fifth, to the
Class B-II Certificates until the Certificate Principal Balance thereof has been
reduced to zero and sixth, to the Class M-II Certificates, until the Certificate
Principal Balance thereof has been reduced to zero.
All Realized Losses on the Group III Mortgage Loans shall be
allocated by the Trustee on each Distribution Date as follows: first, to the
Accrued Certificate Interest for the Class CE-III Certificates for the related
Interest Accrual Period; second, to the Accrued Certificate Interest for the
Class CE-I Certificates and the Class CE-II Certificates for the related
Interest Accrual Period, on a PRO RATA basis based on the Accrued Certificate
Interest for each such Class, third, to the Class CE-III Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; fourth, to the
Class CE-I Certificates and the Class CE-II Certificates, on a PRO RATA basis
based on the Certificate Principal Balance of each such Class, fifth, to the
Class B-III Certificates until the Certificate Principal Balance thereof has
been reduced to zero and sixth, to the Class M-III Certificates, until the
Certificate Principal Balance thereof has been reduced to zero.
All Realized Losses to be allocated to the Certificate
Principal Balances of all Classes 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
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 Class of Certificates,
on such Distribution Date.
Any allocation 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 and any allocation of Realized Losses
to a Class CE Certificate shall be made by reducing the amount otherwise payable
in respect thereof pursuant to Section 4.01(a)(4). No allocations of any
Realized Losses shall be made to the Certificate Principal Balances of the Class
A Certificates or the Class P Certificates.
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As used herein, an allocation of a Realized Loss on a "PRO
RATA basis" among two or more specified Classes of Certificates means an
allocation on a pro rata basis, among the various Classes so specified, to each
such Class of Certificates on the basis of their then outstanding Certificate
Principal Balances prior to giving effect to distributions to be made on such
Distribution Date. All 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.
(c) All Realized Losses on the Group I Mortgage Loans shall be
allocated by the Trustee on (i) the 1st Distribution Date, to REMIC I-A Regular
Interest IA-LT1 until the Uncertificated Balance of such REMIC I-A Regular
Interest has been reduced to zero and (ii) any Distribution Date thereafter, to
REMIC I-A Regular Interest IA-LT1 and REMIC I-A Regular Interest IA-LT2 until
the Uncertificated Balance of such REMIC I-A Regular Interest has been reduced
to zero. All Realized Losses on the Group II Mortgage Loans shall be allocated
by the Trustee on (i) the 1st Distribution Date, to REMIC I-B Regular Interest
IB-LT1 until the Uncertificated Balance of such REMIC I-B Regular Interest has
been reduced to zero and (ii) any Distribution Date thereafter, to REMIC I-B
Regular Interest IB-LT1 and REMIC I-B Regular Interest IB-LT2 until the
Uncertificated Balance of such REMIC I-B Regular Interest has been reduced to
zero. All Realized Losses on the Group III Mortgage Loans shall be allocated by
the Trustee on (i) the 1st Distribution Date, to REMIC I-C Regular Interest
IC-LT1 until the Uncertificated Balance of such REMIC I-C Regular Interest has
been reduced to zero and (ii) any Distribution Date thereafter, to REMIC I-C
Regular Interest IC-LT1 and REMIC I-C Regular Interest IC- LT2 until the
Uncertificated Balance of such REMIC I-C Regular Interest has been reduced to
zero.
All Realized Losses on the Group I Mortgage Loans shall be
deemed to have been allocated in the specified percentages, as follows: first,
to interest payable to the REMIC II Regular Interest II-LTAA1 and REMIC II
Regular Interest II-LTZZ1 up to an aggregate amount equal to the REMIC II Group
I Interest Loss Allocation Amount, 98% and 2%, respectively; second, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA1 and REMIC II
Regular Interest II-LTZZ1 up to an aggregate amount equal to the REMIC II Group
I Principal Loss Allocation Amount, 98% and 2%, respectively; third, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA1, REMIC II Regular
Interest II-LTB1 and REMIC II Regular Interest II-LTZZ1, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTB1 has been reduced to zero, fourth, to the Uncertificated Balances of
REMIC II Regular Interest II-LTAA1, REMIC II Regular Interest II-LTMI2 and REMIC
II Regular Interest II-LTZZ1, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTMI2 has been reduced to
zero and fifth, to the Uncertificated Balances of REMIC II Regular Interest
II-LTAA1, REMIC II Regular Interest II-LTMI1 and REMIC II Regular Interest
II-LTZZ1, 98%, 1% and 1%, respectively, until the Uncertificated Balance of
REMIC II Regular Interest II-LTMI1 has been reduced to zero.
All Realized Losses on the Group II Mortgage Loans shall be
deemed to have been allocated in the specified percentages, as follows: first,
to interest payable to the REMIC II Regular Interest II-LTAA2 and REMIC II
Regular Interest II-LTZZ2 up to an aggregate amount equal to the REMIC II Group
II Interest Loss Allocation Amount, 98% and 2%, respectively; second, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA2 and REMIC II
Regular Interest II-LTZZ2 up to an
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aggregate amount equal to the REMIC II Group II Principal Loss Allocation
Amount, 98% and 2%, respectively; third, to the Uncertificated Balances of REMIC
II Regular Interest II-LTAA2, REMIC II Regular Interest II-LTB2 and REMIC II
Regular Interest II-LTZZ2, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTB2 has been reduced to
zero and fourth, to the Uncertificated Balances of REMIC II Regular Interest
II-LTAA2, REMIC II Regular Interest II- LTM2 and REMIC II Regular Interest
II-LTZZ2, 98%, 1% and 1%, respectively, until the Uncertificated Balance of
REMIC II Regular Interest II-LTM2 has been reduced to zero.
All Realized Losses on the Group III Mortgage Loans shall be
deemed to have been allocated in the specified percentages, as follows: first,
to interest payable to the REMIC II Regular Interest II-LTAA3 and REMIC II
Regular Interest II-LTZZ3 up to an aggregate amount equal to the REMIC II Group
III Interest Loss Allocation Amount, 98% and 2%, respectively; second, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA3 and REMIC II
Regular Interest II-LTZZ3 up to an aggregate amount equal to the REMIC II Group
III Principal Loss Allocation Amount, 98% and 2%, respectively; third, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA3, REMIC II Regular
Interest II-LTB3 and REMIC II Regular Interest II-LTZZ3, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTB3 has been reduced to zero and fourth, to the Uncertificated Balances of
REMIC II Regular Interest II-LTAA3, REMIC II Regular Interest II- LTM3 and REMIC
II Regular Interest II-LTZZ3, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM3 has been reduced to
zero.
SECTION 4.05. Compliance with Withholding Requirements
Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
SECTION 4.06. Exchange Commission; Additional Information.
(a) The Trustee shall reasonably cooperate with the Depositor
in connection with the Trust's satisfying the reporting requirements under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Trustee
shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for
similar securities as required by the Exchange Act and the Rules and Regulations
of the Securities and Exchange Commission thereunder, and the Depositor shall
sign (or shall cause another entity acceptable to the Securities and Exchange
Commission to sign) and the Trustee shall file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such forms on
behalf of the Depositor (or such other entity). The Depositor hereby grants to
the Trustee a limited power of attorney to execute any Form 8-K and file each
such document on behalf of the Depositor. Such power of attorney shall continue
until the earlier of (i) receipt by the Trustee from the Depositor of written
termination of such
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power of attorney and (ii) the termination of the Trust. Notwithstanding
anything herein to the contrary, the Depositor, and not the Trustee, shall be
responsible for executing each Form 10-K filed on behalf of the Trust.
(b) Each Form 8-K shall be filed by the Trustee within 15 days
after each Distribution Date, with a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
March 30th of each year (or such earlier date as may be required by the Exchange
Act and the Rules and Regulations of the Securities and Exchange Commission),
the Trustee shall file a Form 10-K, in substance as required by applicable law
or applicable Securities and Exchange Commission staff's interpretations. Such
Form 10-K shall include as exhibits each Servicer's annual statement of
compliance described under Section 3.20 and the accountant's report with respect
to each Servicer described under Section 3.21, in each case to the extent they
have been timely delivered to the Trustee. If they are not so timely delivered,
the Trustee shall file an amended Form 10-K including such documents as exhibits
reasonably promptly after they are delivered to the Trustee. The Trustee shall
have no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence or
willful misconduct. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit J-1 (the "Certification"), which shall be signed by
the senior officer of the Depositor in charge of securitization.
(c) In addition, (x) the Trustee shall sign a certification
(in the form attached hereto as Exhibit J-2) for the benefit of the Depositor
and its officers, directors and Affiliates regarding certain aspects of the
Certification (provided, however, that the Trustee shall not undertake an
analysis of the accountant's report attached as an exhibit to the Form 10-K) and
(y) each of the Servicers shall sign a certifiction (in the form attached hereto
as Exhibit J-3) for the benefit of the Depositor, the Trustee and their
officers, directors and Affiliates regarding certain aspects of the
Certification (the "Servicer Certification"). The Servicer Certification shall
be delivered to the Depositor and the Trustee no later than March 15th or if
such day is not a Business Day, the preceding Business Day, each year (subject
to Section 4.06(e) hereof). The Trustee's certification shall be delivered to
the Depositor by no later than March 19th of each year (or if such day is not a
Business Day, the immediately preceding Business Day) and the Depositor shall
deliver the Certification to the Trustee for filing no later than March 20th of
each year (or if such day is not a Business Day, the immediately preceding
Business Day).
In addition, (a) the Trustee shall indemnify and hold harmless
the Depositor and its 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 the Trustee's obligations under this Section 4.06(c) or
the Trustee's negligence, bad faith or willful misconduct in connection
therewith and (b) each Servicer shall indemnify and hold harmless the Depositor
and its 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 Servicer's obligations under this Section 4.06(c), any material
misstatement or omission contained in the Servicer's Certification or any
information correctly derived by the Trustee and included in a Form 8-K or Form
10-K from information provided to the Trustee by the Servicer under this
Agreement. The Depositor shall indemnify and hold harmless the Trustee and its
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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 the Depositor's obligations under this Section 4.06 or the Depositor's
negligence, bad faith or willful misconduct in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, then (i) the Trustee agrees that it shall contribute to
the amount paid or payable by the Depositor as a result of the losses, claims,
damages or liabilities of the Depositor in such proportion as is appropriate to
reflect the relative fault of the Depositor on the one hand and the Trustee on
the other and (ii) each Servicer agrees that it shall contribute to the amount
paid or payable by the Depositor as a result of the losses, claims, damages or
liabilities of the Depositor in such proportion as is appropriate to reflect the
relative fault of the Depositor on the one hand and the related Servicer on the
other.
(d) Upon any filing with the Securities and Exchange
Commission, the Trustee shall promptly deliver to the Depositor a copy of any
executed report, statement or information.
(e) Prior to January 30 of the first year in which the Trustee
is able to do so under applicable law, the Trustee shall file a Form 15
Suspension Notification with respect to the Trust.
(f) To the extent that, following the Closing Date, the
Depositor certifies that reports and certifications differing from those
required under this Section 4.06 comply with the reporting requirements under
the Exchange Act, the Trustee hereby agrees that it will reasonably cooperate to
amend the provisions of this Section 4.06 (in accordance with Section 11.01) in
order to comply with such amended reporting requirements and such amendment of
this Section 4.06. Any such amendment may result in the reduction of the reports
filed by the Depositor under the Exchange Act. Notwithstanding the foregoing,
the Trustee shall not be obligated to enter into any amendment pursuant to this
Section that adversely affects its obligations and immunities under this
Agreement.
SECTION 4.07. Derivative Contracts for Benefit of Class R-X
Certificates.
At any time on or after the Closing Date, the Depositor shall
have the right to deposit into the Trust Fund, solely for the benefit of the
Holder of the Class R-X Certificates, a derivative contract or comparable
instrument. Any such instrument shall constitute a fully prepaid agreement. All
collections, proceeds and other amounts in respect of such an instrument shall
be distributed to the Class R-X Certificates on the Distribution Date following
receipt thereof by the Trustee. In no event shall such an instrument constitute
a part of any REMIC created hereunder. In addition, in the event any such
instrument is deposited, the Trust Fund shall be deemed to be divided into two
separate and discrete sub-Trust Funds. The assets of one such sub-Trust Fund
shall consist of all the assets of the Trust Fund other than the instrument and
the assets of the other sub-Trust Fund shall consist solely of such instrument.
SECTION 4.08. The Policy.
(a) If, based on the information provided by either Servicer
pursuant to Section 4.03, the Trustee determines that an Insured Amount to be
covered by the Policy will exist for the related
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Distribution Date, the Trustee shall complete the notice in the form of Exhibit
A to the Policy (the "Notice") and submit such Notice in accordance with the
Policy to the Certificate Insurer no later than 12:00 P.M., New York City time,
on the second Business Day immediately preceding such Distribution Date, as a
claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance
Account on behalf of the Holders of the Insured Certificates over which the
Trustee shall have the exclusive control and sole right of withdrawal. Upon
receipt of an Insured Amount from the Certificate Insurer on behalf of the
Holders of the Insured Certificates, the Trustee shall deposit such Insured
Amount in the Insurance Account and distribute such amount only for purposes of
payment to the Insured Certificates of the Insured Amount for which a claim was
made and such amount may not be applied to satisfy any costs, expenses or
liabilities of either Servicer, the Seller, the Guarantor, the Depositor, the
Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts
paid under the Policy, to the extent needed to pay the Insured Amount, shall be
transferred to the Distribution Account on the related Distribution Date and
disbursed by the Trustee to the holders of the Insured Certificates in
accordance with Section 4.01. It shall not be necessary for such payments to be
made by checks or wire transfers separate from the checks or wire transfers used
to pay other distributions to the holders of the Insured Certificates with other
funds available to make such payment. However, the amount of any payment of
principal or of interest on the Insured Certificates to be paid from funds
transferred from the Insurance Account shall be noted as provided in paragraph
(d) below and in the statement to be furnished to holders of the Insured
Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall
not be invested. Any funds remaining in the Insurance Account on the first
Business Day following a Distribution Date shall be returned to the Certificate
Insurer pursuant to the written instructions of the Certificate Insurer by the
end of such Business Day.
(c) The Trustee shall keep a complete and accurate record of
the amount of interest and principal paid in respect of any Insured Certificate
from moneys received under the Policy. The Certificate Insurer shall have the
right to inspect such records at reasonable times during normal business hours
upon one Business Day's prior notice to the Trustee.
(d) In the event that the Trustee has received a certified
copy of an order of the appropriate court that any Insured Amount has been
voided in whole or in part as a preference payment under applicable bankruptcy
law, the Trustee shall so notify the Certificate Insurer, shall comply with the
provisions of the Policy to obtain payment by the Certificate Insurer of such
Preference Amount in the amount of such voided distribution constituting a
Preference Amount, and shall, at the time it provides notice to the Certificate
Insurer, notify, by mail the holders of the affected Insured Certificates that,
in the event any Holder's distribution is so recovered as a preference payment,
such Holder of an Insured Certificate will be entitled to payment constituting a
Preference Amount pursuant to the Policy, a copy of which shall be made
available through the Trustee, the Certificate Insurer or the Certificate
Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate
Insurer or its fiscal agent, if any, its records evidencing the payments which
have been made by the Trustee and subsequently recovered from the holders of the
Insured Certificates, and dates on which such payments were made.
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(e) The Trustee shall promptly notify the Certificate Insurer
and its fiscal agent of any proceeding or the institution of any action, of
which a Responsible Officer of the Trustee has actual knowledge, seeking the
avoidance as a preferential transfer under applicable bankruptcy, insolvency,
receivership or similar law (a "Preference Claim") of any distribution made with
respect to the Insured Certificates. Each holder of an Insured Certificate, by
its purchase of such Insured Certificate, each Servicer, the Guarantor the
Depositor and the Trustee agree that, the Certificate Insurer (so long as no
Certificate Insurer Default exists) may at any time during the continuation of
any proceeding relating to a Preference Claim direct all matters relating to
such Preference Claim, including, without limitation, (i) the direction of any
appeal of any order relating to such Preference Claim and (ii) the posting of
any surety, supersedes or performance bond pending any such appeal. In addition
and without limitation of the foregoing, the Certificate Insurer shall be
subrogated to, and each holder of an Insured Certificate and the Trustee hereby
delegates and assigns to the Certificate Insurer, to the fullest extent
permitted by law, the rights of the Trustee and each holder of an Insured
Certificate in the conduct of any such Preference Claim, including, without
limitation, all rights of any party to any adversary proceeding or action with
respect to any court order issued in connection with any such Preference Claim.
(f) The Trustee shall, upon retirement of the Insured
Certificates, furnish to the Certificate Insurer a notice of such retirement,
and, upon retirement of the Insured Certificates and the expiration of the term
of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the
holders of the Insured Certificates for the purpose of making claims thereon and
distributing the proceeds thereof. Neither the Policy nor the amounts paid on
the Policy will constitute part of the Trust Fund created by this Agreement.
Each Holder of the Insured Certificates, by accepting its Insured Certificates,
appoints the Trustee as attorney in fact for the purpose of making claims on the
Policy.
(h) Anything herein to the contrary notwithstanding, any
payment with respect to principal of or interest on the Insured Certificates
which is made with moneys received pursuant to the terms of the Policy shall not
be considered payment of the Insured Certificates from the Trust Fund. The
Depositor, each Servicer, the Guarantor and the Trustee acknowledge, and each
Holder by its acceptance of an Insured Certificate agrees, that without the need
for any further action on the part of the Certificate Insurer, the Depositor,
either Servicer, the Guarantor or the Trustee (a) to the extent the Certificate
Insurer makes payments, directly or indirectly, on account of principal of or
interest on the Insured Certificates to the holders of such Insured
Certificates, the Certificate Insurer will be fully subrogated to, and each
holder of an Insured Certificate, each Servicer, the Guarantor and the Trustee
hereby delegate and assign to the Certificate Insurer, to the fullest extent
permitted by law, the rights of such holders to receive such principal and
interest from the Trust Fund, including, without limitation, any amounts due to
the holders of the Insured Certificates in respect of securities law violations
arising from the offer and sale of the Insured Certificates, and (b) the
Certificate Insurer shall be paid such amounts from the sources and in the
manner provided herein for the payment of such amounts and as provided in this
Agreement. The Trustee, the Guarantor and each Servicer shall cooperate in all
respects with any reasonable request by the Certificate Insurer for action to
preserve or enforce the Certificate Insurer's rights or interests under this
Agreement without limiting the rights or affecting the interests of the holders
as otherwise set forth herein.
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(i) By accepting its Insured Certificate, each holder of an
Insured Certificate agrees that, unless a Certificate Insurer Default exists,
the Certificate Insurer shall be deemed to be the holder of the Insured
Certificate for all purposes (other than with respect to the receipt of payment
on the Insured Certificates) and shall have the right to exercise all rights
(including, without limitation, voting rights) of the holders of the Insured
Certificates under this Agreement and under the Insured Certificates without any
further consent of the holders of the Insured Certificates. All notices,
statement reports, certificates or opinions required by this Agreement to be
sent to any holders of Insured Certificates shall also be sent to the
Certificate Insurer.
SECTION 4.09. The Guaranty.
On each Distribution Date following receipt (i) of a statement
(as set forth in Section 4.02) that indicates a Guarantor Deficiency Amount for
such Distribution Date and (ii) the Notice of Claim; the Guarantor shall
distribute to the Trustee a Guarantor Payment, in an aggregate amount equal to
the Guarantor Deficiency Amount for such Distribution Date directly to the
Holders of the Guaranteed Certificates, without first depositing such amount in
the Distribution Account, as follows: (i) the Guaranteed Interest Distribution
Amount shall be distributed as interest with respect to the Guaranteed
Certificates as provided in Section 4.01; and (ii) the Guaranteed Principal
Distribution Amount shall be distributed as principal with respect to the
Guaranteed Certificates as provided in Section 4.01.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates in the aggregate will represent the
entire beneficial ownership interest in the Mortgage Loans and all other assets
included in the Trust Fund.
The Certificates will be substantially in the forms annexed
hereto as Exhibits A-1 through A-38. The Certificates of each Class will be
issuable in registered form only, in denominations of authorized Percentage
Interests as described in the definition thereof. Each Certificate will share
ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed,
authenticated and delivered by the Trustee upon the written order of the
Depositor. The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized signatory. Certificates bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Trustee shall bind the Trustee 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 Trustee 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.
(b) The Class A Certificates and the Mezzanine Certificates
shall initially be issued as one or more Certificates held by the Book-Entry
Custodian or, if appointed to hold such Certificates as provided below, the
Depository and registered in the name of the Depository or its nominee and,
except as provided below, registration of such Certificates may not be
transferred by the Trustee except to another Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. The Certificate Owners shall hold their respective Ownership Interests
in and to such Certificates through the book-entry facilities of the Depository
and, except as provided below, shall not be entitled to definitive, fully
registered Certificates ("Definitive Certificates") in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures. The Trustee is hereby
initially appointed as the Book-Entry Custodian and hereby agrees to act as such
in accordance herewith and in accordance with the agreement that it has with the
Depository authorizing it to act as such. The Book-Entry Custodian may, and, if
it is no longer qualified to act as such, the Book-Entry Custodian shall,
appoint, by a written instrument delivered to the Depositor, each Servicer and,
if the Trustee is not
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the Book-Entry Custodian, the Trustee, any other transfer agent (including the
Depository or any successor Depository) to act as Book-Entry Custodian under
such conditions as the predecessor Book-Entry Custodian and the Depository or
any successor Depository may prescribe, provided that the predecessor Book-Entry
Custodian shall not be relieved of any of its duties or responsibilities by
reason of any such appointment of other than the Depository. If the Trustee
resigns or is removed in accordance with the terms hereof, the Trustee, the
successor Trustee or, if it so elects, the Depository shall immediately succeed
to its predecessor's duties as Book-Entry Custodian. The Depositor shall have
the right to inspect, and to obtain copies of, any Certificates held as
Book-Entry Certificates by the Book-Entry Custodian.
The Trustee, each Servicer, the Certificate Insurer, the
Guarantor and the Depositor may for all purposes (including the making of
payments due on the Book-Entry Certificates) deal with the Depository as the
authorized representative of the Certificate Owners with respect to the
Book-Entry Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Trustee may establish a reasonable record date in connection with solicitations
of consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
If (i)(A) the Depository or the Depositor advises the Trustee
in writing that the Depository is no longer willing, qualified or able to
properly discharge its responsibilities as Depository, and (B) the Depositor is
unable to locate a qualified successor or (ii) after the occurrence of a
Servicer Event of Default, Certificate Owners representing in the aggregate not
less than 51% of the Ownership Interests of the Book-Entry Certificates advise
the Trustee through the Depository, in writing, that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Book-Entry
Custodian or the Depository, as applicable, accompanied by registration
instructions from the Depository for registration of transfer, the Trustee shall
cause the Definitive Certificates to be issued. Such Definitive Certificates
will be issued in minimum denominations of $25,000, except that any beneficial
ownership that was represented by a Book-Entry Certificate in an amount less
than $25,000 immediately prior to the issuance of a Definitive Certificate shall
be issued in a minimum denomination equal to the amount represented by such
Book-Entry Certificate. None of the Depositor, either Servicer or the Trustee
shall be liable for any delay in the delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates, all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates, and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
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(a) The Trustee shall cause to be kept at one of the offices
or agencies to be appointed by the Trustee in accordance with the provisions of
Section 8.11, a Certificate Register for the Certificates in which, subject to
such reasonable regulations as it may prescribe, the Trustee shall provide for
the registration of Certificates and of transfers and exchanges of Certificates
as herein provided.
(b) No transfer of any Class CE Certificate, Class P
Certificate or Residual Certificate (the "Private Certificates") shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "1933 Act"), and effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of a Private Certificate is to be made without
registration or qualification (other than in connection with the initial
transfer of any such Certificate by the Depositor to an Affiliate of the
Depositor), the Trustee shall require receipt of: (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act, written
certifications from the Certificateholder desiring to effect the transfer and
from such Certificateholder's prospective transferee, substantially in the forms
attached hereto as Exhibit F-1; and (ii) in all other cases, an Opinion of
Counsel satisfactory to it that such transfer may be made without such
registration (which Opinion of Counsel shall not be an expense of the Trust Fund
or of the Depositor, the Trustee, either Servicer in its capacity as such or any
Sub-Servicer), together with copies of the written certification(s) of the
Certificateholder desiring to effect the transfer and/or such
Certificateholder's prospective transferee upon which such Opinion of Counsel is
based, if any. Neither the Depositor nor the Trustee is obligated to register or
qualify any such Certificates under the 1933 Act or any other securities laws or
to take any action not otherwise required under this Agreement to permit the
transfer of such Certificates without registration or qualification. Any
Certificateholder desiring to effect the transfer of any such Certificate shall,
and does hereby agree to, indemnify the Trustee, the Depositor and each Servicer
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.
(c) No transfer of a Private Certificate or any interest
therein shall be made to any Plan subject to ERISA or Section 4975 of the Code,
any Person acting, directly or indirectly, on behalf of any such Plan or any
Person acquiring such Certificates with "Plan Assets" of a Plan within the
meaning of the Department of Labor regulation promulgated at 29 C. F. R. ss.
2510.3-101 ("Plan Assets"), as certified by such transferee in the form of
Exhibit G, unless the Trustee is provided with an Opinion of Counsel addressed
to the Trustee, for the benefit of the Trustee, each Servicer and the Depositor
and on which they may rely, which establishes to the satisfaction of the Trustee
that the purchase of such Certificates is permissible under ERISA and the Code,
will not constitute or result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Depositor, either
Servicer, the Trustee or the Trust Fund to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, either Servicer, the Trustee or the
Trust Fund. Neither an Opinion of Counsel nor any certification will be required
in connection with the initial transfer of any such Certificate by the Depositor
to an Affiliate of the Depositor (in which case, the Depositor or any Affiliate
thereof shall have deemed to have represented that such Affiliate is not a Plan
or a Person investing Plan Assets) and the Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request of the
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Trustee, shall be a written representation) from the Depositor of the status of
such transferee as an affiliate of the Depositor.
Each beneficial owner of a Class M 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 investor, (ii) it has acquired and is holding such Class M Certificates in
reliance on the Underwriter's Exemption, and that it understands that there are
certain conditions to the availability of the Underwriter's Exemption, including
that the Class M Certificates must be rated, at the time of purchase, not lower
than "BBB-" (or its equivalent) by Fitch, Xxxxx'x or S&P and the Certificates
are 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 PTCE 95-60, and (3) the
conditions in Sections I and III of PTCE 95-60 have been satisfied.
If any Certificate or any interest therein is acquired or held
in violation of the provisions of the two preceding paragraphs, the next
preceding permitted beneficial owner will be treated as the beneficial owner of
that Certificate retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of any such
Certificate or interest therein was effected in violation of the provisions of
the preceding paragraph shall indemnify and hold harmless the Depositor, each
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result of
that acquisition or holding.
(d) (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 to have irrevocably authorized the Trustee or its
designee under clause (iii)(A) below to deliver payments to a Person other than
such Person and to negotiate the terms of any mandatory sale under clause
(iii)(B) below and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. 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 Trustee 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 Trustee
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 F-2) from the proposed
Transferee, in form and substance satisfactory to the Trustee,
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
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will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of this Section 5.02(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 a Responsible Officer of the Trustee 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 in the form attached hereto
as Exhibit F-2 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 F-2) to the Trustee 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 Trustee
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 Trustee 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 Trustee as a condition to such registration. In
addition, no Transfer of a Residual Certificate shall be made unless
the Trustee 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
5.02(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 Trustee 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 5.02(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 5.02(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 Trustee shall have
the right,
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but not the obligation, without notice to the holder or any
prior holder of such Residual Certificate, to sell such
Residual Certificate to a purchaser selected by the Trustee on
such terms as the Trustee may choose. Such purported
Transferee shall promptly endorse and deliver each Residual
Certificate in accordance with the instructions of the
Trustee. Such purchaser may be the Trustee itself or any
Affiliate of the Trustee. The proceeds of such sale, net of
the commissions (which may include commissions payable to the
Trustee or its Affiliates), expenses and taxes due, if any,
will be remitted by the Trustee 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
Trustee, and the Trustee 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 Trustee 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 accepted by the Trustee.
(v) The provisions of this Section 5.02(d) set forth prior to
this subsection (v) may be modified, added to or eliminated, provided
that there shall have been delivered to the Trustee 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 Trustee, to the effect that such
modification of, addition to or elimination of such provisions
will not cause any Trust REMIC to cease to qualify as a REMIC
and will not cause any Trust REMIC 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.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at any office or agency of the
Trustee maintained for such purpose pursuant to Section 8.12, the Trustee 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.
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(f) 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 Trustee maintained
for such purpose pursuant to Section 8.12. Whenever any Certificates are so
surrendered for exchange, the Trustee 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 Trustee) be duly endorsed by, or be accompanied by
a written instrument of transfer in the form satisfactory to the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing. In
addition, (i) with respect to each Class R-I Certificate, the Holder thereof may
exchange, in the manner described above, such Class R-I Certificate for a
separate Certificate representing such Holder's respective Percentage Interest
in the Class R-I Certificate being exchanged, (ii) with respect to each Class
R-II Certificate, the Holder thereof may exchange, in the manner described
above, such Class R-II Certificate for a separate Certificate representing such
Holder's respective Percentage Interest in the Class R-II Certificate being
exchanged, (iii) with respect to each Class R-III Certificate, the Holder
thereof may exchange, in the manner described above, such Class R-III
Certificate for a separate Certificate representing such Holder's respective
Percentage Interest in the Class R-III Certificate being exchanged and (iv) with
respect to each Class R-X Certificate, the Holder thereof may exchange, in the
manner described above, such Class R-X Certificate for two separate
Certificates, each representing such Holder's respective Percentage Interest in
the Class R-II Interest and the Class R-III Interest, respectively, in each case
that was evidenced by the Class R-X Certificate being exchanged.
(g) No service charge to the Certificateholders shall be made
for any transfer or exchange of Certificates, but the Trustee 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.
(h) All Certificates surrendered for transfer and exchange
shall be canceled and destroyed by the Trustee in accordance with its customary
procedures.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Trustee, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Trustee such security or indemnity as may be required by it to save it
harmless, then, in the absence of actual knowledge by the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same
Class and of like denomination and Percentage Interest. Upon the issuance of any
new Certificate under this Section, the Trustee 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
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the applicable REMIC created hereunder, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
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SECTION 5.04. Persons Deemed Owners.
The Depositor, each Servicer, the Trustee, the Certificate
Insurer, the Guarantor and any agent of any of them may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.01 and for all
other purposes whatsoever, and none of the Depositor, either Servicer, the
Trustee, the Certificate Insurer, the Guarantor or any agent of any of them
shall be affected by notice to the contrary.
SECTION 5.05. Certain Available Information.
On or prior to the date of the first sale of any Private
Certificate to an Independent third party, the Depositor shall provide to the
Trustee ten copies of any private placement memorandum or other disclosure
document used by the Depositor in connection with the offer and sale of such
Certificates. In addition, if any such private placement memorandum or
disclosure document is revised, amended or supplemented at any time following
the delivery thereof to the Trustee, the Depositor promptly shall inform the
Trustee of such event and shall deliver to the Trustee ten copies of the private
placement memorandum or disclosure document, as revised, amended or
supplemented. The Trustee shall maintain at its Corporate Trust Office and shall
make available free of charge during normal business hours for review by any
Holder of a Certificate, a Certificate Owner or any Person identified to the
Trustee as a prospective transferee of a Certificate, originals or copies of the
following items: (i) in the case of a Holder, a Certificate Owner or prospective
transferee of a Private Certificate, the related private placement memorandum or
other disclosure document relating to such Class of Certificates, in the form
most recently provided to the Trustee; and (ii) in all cases, (A) this Agreement
and any amendments hereof entered into pursuant to Section 11.01, (B) all
monthly statements required to be delivered to Certificateholders of the
relevant Class pursuant to Section 4.02 since the Closing Date, and all other
notices, reports, statements and written communications delivered to the
Certificateholders of the relevant Class pursuant to this Agreement since the
Closing Date, (C) all certifications delivered by a Responsible Officer of the
Trustee since the Closing Date pursuant to Section 10.01(h), (D) any and all
Officers' Certificates delivered to the Trustee by the related Servicer since
the Closing Date to evidence such Servicer's determination that any P&I Advance
or Servicing Advance was, or if made, would be, a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, respectively, and (E) any and all Officers'
Certificates delivered to the Trustee by either Servicer since the Closing Date
pursuant to Section 4.04(a). Copies and mailing of any and all of the foregoing
items will be available from the Trustee upon request at the expense of the
Person requesting the same.
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ARTICLE VI
THE DEPOSITOR AND THE SERVICERS
SECTION 6.01. Liability of the Depositor and the Servicers.
The Depositor and each Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement upon them in their respective capacities as Depositor and a
Servicer and undertaken hereunder by the Depositor and each Servicer herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the
Servicers.
Subject to the following paragraph, the Depositor will keep in
full effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation. Subject to the following paragraph,
each Servicer will keep in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation. The
Depositor and each Servicer each will obtain and preserve its qualification to
do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The Depositor or either Servicer may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets to
any Person, in which case any Person resulting from any merger or consolidation
to which the Depositor or such Servicer shall be a party, or any Person
succeeding to the business of the Depositor or either Servicer, shall be the
successor of the Depositor or such Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to either Servicer
shall be qualified to service mortgage loans on behalf of Xxxxxx Mae or Xxxxxxx
Mac; and provided further that the Rating Agencies' ratings of the Class A
Certificates, the Class A-IO Certificates and the Mezzanine Certificates in
effect immediately prior to such merger or consolidation will not be qualified,
reduced or withdrawn as a result thereof (as evidenced by a letter to such
effect from the Rating Agencies).
SECTION 6.03. Limitation on Liability of the Depositor, the
Servicers and Others.
None of the Depositor, either Servicer, the Guarantor or any
of the directors, officers, employees or agents of the Depositor, either
Servicer or the Guarantor shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, either
Servicer, the Guarantor or any such person against any breach of warranties,
representations or covenants made herein, or against any specific liability
imposed on the Depositor, such Servicer or the Guarantor pursuant hereto, or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder. The Depositor, each
Servicer, the
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Guarantor and any director, officer, employee or agent of the Depositor, either
Servicer or the Guarantor may rely in good faith on any document of any kind
which, PRIMA FACIE, is properly executed and submitted by any Person respecting
any matters arising hereunder. The Depositor, each Servicer, the Guarantor and
any director, officer, employee or agent of the Depositor, either Servicer or
the Guarantor shall be indemnified and held harmless by the Trust Fund against
any loss, liability or expense incurred in connection with (i) any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense relating to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement), any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder and (ii) the
breach of any representation or warranty of NC Capital under the Mortgage Loan
Purchase Agreement (but only to the extent of amounts paid by NC Capital to the
Trust Fund pursuant to its obligations under Section 7 of the Mortgage Loan
Purchase Agreement). None of the Depositor, either Servicer or the Guarantor
shall be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement;
provided, however, that each of the Depositor, each Servicer and the Guarantor
may in its discretion undertake any such action which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom (except any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder) shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor, each
Servicer and the Guarantor shall be entitled to be reimbursed therefor from the
related Collection Account as and to the extent provided in Section 3.11, any
such right of reimbursement being prior to the rights of the Certificateholders
to receive any amount in the related Collection Account.
Each Servicer (except the Trustee to the extent it has succeeded the
Master Servicer as required hereunder) shall indemnify and hold the Trustee, the
Depositor, the Guarantor and the Trust Fund harmless against any and all claims,
losses, penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, fees and expenses that the Trustee, the
Depositor, the Guarantor, the Certificate Insurer or the Trust Fund may sustain
in any way related to the failure of such Servicer to perform its duties and
service the Mortgage Loans in compliance with the terms of this Agreement. Each
Servicer shall immediately notify the Trustee, the Certificate Insurer, the
Guarantor and the Depositor if a claim is made that may result in such claims,
losses, penalties, fines, forfeitures, legal fees or related costs, judgments,
or any other costs, fees and expenses, and the related Servicer shall assume
(with the consent of the Trustee) the defense of any such claim and pay all
expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against such Servicer, the Trustee, the Depositor, the Guarantor and/or the
Trust Fund in respect of such claim. The provisions of this paragraph shall
survive the termination of this Agreement, the payment of the outstanding
Certificates and the resignation or removal of the Trustee
SECTION 6.04. Limitation on Resignation of the Servicers.
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Neither Servicer shall resign from the obligations and duties
hereby imposed on it except (i) upon determination that its duties hereunder are
no longer permissible under applicable law and (ii) with the written consent of
the Trustee and the Controlling Person (as provided in Section 1.03). Any such
determination pursuant to the preceding sentence permitting the resignation of
either Servicer shall be evidenced by an Opinion of Counsel to such effect
obtained at the expense of the related Servicer and delivered to the Trustee,
the Certificate Insurer and the Guarantor. No resignation of either Servicer
shall become effective until the Trustee or a successor servicer reasonably
acceptable to the Controlling Person shall have assumed the related Servicer's
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
Except as expressly provided herein, neither Servicer shall
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by such Servicer hereunder. The foregoing prohibition on assignment
shall not prohibit either Servicer from designating a Sub-Servicer as payee of
any indemnification amount payable to the related Servicer hereunder; provided,
however, that as provided in Section 3.06 hereof, no Sub-Servicer shall be a
third- party beneficiary hereunder and the parties hereto shall not be required
to recognize any Sub-Servicer as an indemnitee under this Agreement. If,
pursuant to any provision hereof, the duties of either Servicer are transferred
to a successor Servicer, the entire amount of the Servicing Fee and other
compensation payable to the related Servicer pursuant hereto shall thereafter be
payable to such successor Servicer.
SECTION 6.05. Rights of the Depositor in Respect of the
Servicers.
Each Servicer shall afford (and any Sub-Servicing Agreement
shall provide that each Sub- Servicer shall afford) the Depositor, the
Certificate Insurer, the Guarantor and the Trustee, upon reasonable advance
notice, during normal business hours, at the office designated by the related
Servicer access to all records maintained by the related Servicer (and any such
Sub-Servicer) in respect of the related Servicer's rights and obligations with
respect to the related Mortgage Loans hereunder and access to officers of the
related Servicer (and those of any such Sub-Servicer) responsible for such
obligations. Upon reasonable advance notice, each Servicer shall furnish to the
Depositor, the Certificate Insurer, the Guarantor and the Trustee its (and any
such Sub-Servicer's) most recent financial statements and such other information
relating to such Servicer's capacity to perform its obligations under this
Agreement as it possesses (and that any such Sub-Servicer possesses). To the
extent such information is not otherwise available to the public, the Depositor,
the Certificate Insurer, the Guarantor and the Trustee shall not disseminate any
information obtained pursuant to the preceding two sentences without such
Servicer's written consent, except as required pursuant to this Agreement or to
the extent that it is appropriate to do so (i) in working with legal counsel,
auditors, taxing authorities or other governmental agencies or (ii) pursuant to
any law, rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Depositor, the
Certificate Insurer, the Guarantor, the Trustee or the Trust Fund, and in any
case, the Depositor, the Certificate Insurer, the Guarantor or the Trustee as
the case may be, (iii) disclosure of any and all information that is or becomes
publicly known, or information obtained by the Trustee from sources other than
the Depositor or the related Servicer, (iv) disclosure as required pursuant to
this Agreement or (v) disclosure of any and all information(A) in any
preliminary or final offering circular,
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registration statement or contract or other document pertaining to the
transactions contemplated by the Agreement approved in advance by the Depositor
or the related Servicer or (B) to any affiliate, independent or internal
auditor, agent, employee or attorney of the Trustee having a need to know the
same, provided that the Trustee advises such recipient of the confidential
nature of the information being disclosed, shall use its best efforts to assure
the confidentiality of any such disseminated non-public information. The
Depositor may, but is not obligated to, enforce the obligations of each Servicer
under this Agreement and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of either Servicer under this
Agreement or exercise the rights of either Servicer under this Agreement;
provided that such Servicer shall not be relieved of any of its obligations
under this Agreement by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by either Servicer and is not obligated to supervise
the performance of the Servicers under this Agreement or otherwise.
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ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Events of Default.
(a) "Servicer Event of Default," wherever used herein, means
any one of the following events, provided, however, that no Servicer
shall be obligated or liable for any default by the other Servicer:
(i) any failure by either Servicer to remit to the Trustee for
distribution to the Certificateholders or the Guarantor any payment
(other than a P&I Advance required to be made from its own funds on any
Servicer Remittance Date pursuant to Section 4.03) required to be made
under the terms of the Certificates and this Agreement which continues
unremedied for a period of one Business Day after the date upon which
written notice of such failure, requiring the same to be remedied,
shall have been given to such Servicer by the Depositor or the Trustee
(in which case notice shall be provided by telecopy), or to such
Servicer, the Depositor and the Trustee by the Guarantor or the Holders
of Certificates entitled to at least 25% of the Voting Rights; or
(ii) any failure on the part of either Servicer duly to
observe or perform in any material respect any other of the covenants
or agreements on the part of such Servicer contained in this Agreement,
or the breach by either Servicer of any representation and warranty
contained in Section 2.05, which continues unremedied for a period of
30 days (or if such failure or breach cannot be remedied within 30
days, then such remedy shall have been commenced within 30 days and
diligently pursued thereafter; provided, however, that in no event
shall such failure or breach be allowed to exist for a period of
greater than 90 days) after the earlier of (i) the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to such Servicer by the Depositor, the Trustee or
to such Servicer, the Depositor and the Trustee by the Guarantor or th
eHolders of Certificates entitled to at least 25% of the Voting Rights
and (ii) actual knowledge of such failure by a Servicing Officer of the
related Servicer; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against either
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 90 days; or
(iv) either Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to it or of or relating to all or substantially all of
its property; or
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(v) either Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vi) either Servicer ceases to be an approved seller or
servicer of Xxxxxx Xxx;
(vii) any failure by GMAC of the Servicer Termination Test;
(viii) any withdrawal or downgrade of two or more levels
(i.e., from "Above Average" to "Below Average" or the equivalent) of
the servicer rating, as of the Closing Date, of a Servicer by any
Rating Agency which results in a downgrade, qualification or withdrawal
of the rating assigned to any Class of Certificates by any Rating
Agency; or
(ix) any failure of either Servicer to make any P&I Advance on
any Servicer Remittance Date required to be made from its own funds
pursuant to Section 4.03 which continues unremedied until 3:00 p.m. New
York time on the Business Day immediately following the Servicer
Remittance Date.
If a Servicer Event of Default described in clauses (i)
through (viii) of this Section shall occur, then, and in each and every such
case, so long as such Servicer Event of Default shall not have been remedied,
the Trustee may, and at the written direction of the Controlling Person (as
provided in Section 1.03) or the Holders of Certificates entitled to at least
51% of Voting Rights, the Trustee shall, by notice in writing to the defaulting
Servicer, the Depositor, the Guarantor and the Certificate Insurer, terminate
all of the rights and obligations of such Servicer in its capacity as a Servicer
under this Agreement, to the extent permitted by law, and in and to the Mortgage
Loans and the proceeds thereof. If a Servicer Event of Default described in
clause (ix) hereof shall occur, the Trustee shall, by notice in writing to the
defaulting Servicer, the Depositor, the Guarantor and the Certificate Insurer,
terminate all of the rights and obligations of such Servicer in its capacity as
a Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof. On or after the receipt by the defaulting Servicer of such
written notice, all authority and power of such Servicer under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered, as attorney-in-fact or otherwise, to
execute and deliver, on behalf of and at the expense of the defaulting Servicer,
any and all documents and other instruments and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The defaulting Servicer
agrees promptly (and in any event no later than ten Business Days subsequent to
such notice) to provide the Trustee with all documents and records requested by
it to enable it to assume such Servicer's functions under this Agreement, and to
cooperate with the Trustee in effecting the termination of such Servicer's
responsibilities and rights under this Agreement, including, without limitation,
the transfer within one Business Day to the Trustee for administration by it of
all cash amounts which at the time shall be or should have been credited by such
Servicer to the related Collection Account held by or
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on behalf of such Servicer, the Distribution Account or any REO Account or
Servicing Account held by or on behalf of such Servicer or thereafter be
received with respect to the Mortgage Loans or any REO Property serviced by such
Servicer (provided, however, that such Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the date of such termination, whether in respect of P&I Advances, Servicing
Advances or otherwise, and shall continue to be entitled to the benefits of
Section 6.03, notwithstanding any such termination, with respect to events
occurring prior to such termination). For purposes of this Section 7.01, the
Trustee shall not be deemed to have knowledge of a Servicer Event of Default
unless a Responsible Officer of the Trustee assigned to and working in the
Trustee's Corporate Trust Office has actual knowledge thereof or unless written
notice of any event which is in fact such a Servicer Event of Default is
received by the Trustee and such notice references the Certificates, the Trust
Fund or this Agreement.
SECTION 7.02. Trustee to Act; Appointment of Successor.
(a)(1) On and after the time a defaulting Servicer receives a
notice of termination, the Trustee shall be the successor in all respects to
such Servicer in its capacity as a Servicer under this Agreement and the
transactions set forth or provided for herein, and all the responsibilities,
duties and liabilities relating thereto and arising thereafter shall be assumed
by the Trustee (except for any representations or warranties of such Servicer
under this Agreement, the responsibilities, duties and liabilities contained in
Section 2.05 and the obligation to deposit amounts in respect of losses pursuant
to Section 3.12) by the terms and provisions hereof including, without
limitation, such Servicer's obligations to make P&I Advances pursuant to Section
4.03; 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 P&I Advances pursuant to Section
4.03; and provided further, that any failure to perform such duties or
responsibilities caused by the defaulting Servicer's failure to provide
information required by Section 7.01 shall not be considered a default by the
Trustee as successor to such Servicer hereunder. As compensation therefor, the
Trustee shall be entitled to the Servicing Fee and all funds relating to the
Mortgage Loans to which the defaulting Servicer would have been entitled if it
had continued to act hereunder. Notwithstanding the above and subject to Section
7.02(a)(2) below, the Trustee may, if it shall be unwilling to so act, or shall,
if it is unable to so act or if it is prohibited by law from making advances
regarding delinquent mortgage loans or if the Controlling Person or the Holders
of Certificates entitled to at least 51% of the Voting Rights so request in
writing to the Trustee, promptly appoint or petition a court of competent
jurisdiction to appoint, an established mortgage loan servicing institution
acceptable to each Rating Agency and having a net worth of not less than
$15,000,000 and reasonably acceptable to the Controlling Person (as provided in
Section 1.03), as the successor to the defaulting Servicer under this Agreement
in the assumption of all or any part of the responsibilities, duties or
liabilities of such Servicer under this Agreement.
The Trustee or other successor Servicer shall be entitled to
be reimbursed by the defaulting Servicer (or by the Trust Fund if the defaulting
Servicer is unable to fulfill its obligations hereunder) for all reasonable
out-of-pocket costs (such expenses of the Trustee to be documented by the
Trustee to the extent possible) associated with the transfer of servicing from
the predecessor Servicer, including without limitation, any such costs or
expenses associated with the complete transfer of all servicing data and the
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completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee to service the Mortgage Loans properly and
effectively.
(2) No appointment of a successor to the defaulting Servicer
under this Agreement shall be effective until the assumption by the successor of
all of such Servicer's responsibilities, duties and liabilities hereunder. In
connection with such appointment and assumption described herein, the Trustee
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
defaulting Servicer as such hereunder. The Depositor, the Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Pending appointment of a successor
to the defaulting Servicer under this Agreement, the Trustee shall act in such
capacity as hereinabove provided.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination of either Servicer pursuant to
Section 7.01 above or any appointment of a successor to such Servicer pursuant
to Section 7.02 above, the Trustee shall give prompt written notice thereof to
the Certificate Insurer, the Guarantor and the Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not later than the later of 60 days after the occurrence
of any event, which constitutes or which, with notice or lapse of time or both,
would constitute a Servicer Event of Default or five days after a Responsible
Officer of the Trustee becomes aware of the occurrence of such an event, the
Trustee shall transmit by mail to the Guarantor, the Certificate Insurer and all
Holders of Certificates notice of each such occurrence, unless such default or
Servicer Event of Default shall have been cured or waived.
SECTION 7.04. Waiver of Servicer Events of Default.
The Holders representing at least 66% of the Voting Rights
evidenced by all Classes of Certificates affected by any default or Servicer
Event of Default hereunder may waive such default or Servicer Event of Default;
provided, however, that a default or Servicer Event of Default under clause (i)
or (vii) of Section 7.01 may be waived only by all of the Holders of the Regular
Certificates and the Controlling Person (as provided in Section 1.03) as
evidenced by the written consent of the Controlling Person. Upon any such waiver
of a default or Servicer Event of Default, such default or Servicer Event of
Default shall cease to exist and shall be deemed to have been remedied for every
purpose hereunder. No such waiver shall extend to any subsequent or other
default or Servicer Event of Default or impair any right consequent thereon
except to the extent expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of a Servicer Event of
Default and after the curing of all Servicer Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. During a Servicer Event of Default,
the Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Any permissive right of the Trustee enumerated in
this Agreement shall not be construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement. If any such
instrument is found not to conform on its face to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected, and if the instrument is not
corrected to its satisfaction, will provide notice thereof to the
Certificateholders, the Guarantor and the Certificate Insurer.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of a Servicer Event of Default,
and after the curing of all such Servicer Events of Default which may
have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee that conform to
the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights, the Guarantor or the
Certificate Insurer
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relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power
conferred upon it, under this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and conclusively rely upon and
shall be fully protected in acting or refraining from acting upon any
resolution, Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) The Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel;
(iii) The Trustee shall not be under any obligation to
exercise any of the trusts or powers vested in it by this Agreement or
to institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, the Certificate Insurer or the Guarantor, pursuant
to the provisions of this Agreement, unless such Certificateholders,
the Certificate Insurer or the Guarantor shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of a Servicer Event of Default
(which has not been cured or waived), to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree
of care and skill in their exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person's own
affairs;
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) Prior to the occurrence of a Servicer Event of Default
hereunder and after the curing of all Servicer Events of Default which
may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing to do so by the Certificate Insurer, the Guarantor
or the Holders of Certificates entitled to at least 25% of the Voting
Rights; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee not reasonably assured to the Trustee by the Certificate
Insurer, the Guarantor or such Certificateholders, the
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Trustee may require reasonable indemnity against such expense or
liability from the Certificate Insurer, the Guarantor or such
Certificateholders as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, accountants or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agents,
accountants or attorneys appointed with due care by it hereunder; and
(vii) The Trustee shall have no obligation to invest and
reinvest any cash held in the absence of timely and specific written
investment direction from either Servicer or the Depositor. In no event
shall the Trustee be liable for the selection of investments or for
investment losses incurred thereon. The Trustee shall have no liability
in respect of losses incurred as a result of the liquidation of any
investment incurred as a result of the liquidation of any investment
prior to its stated maturity or the failure of either Servicer or the
Depositor to provide timely written investment direction.
(b) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it
without the possession of any of the Certificates, or the production
thereof at the trial or other proceeding relating thereto, and any such
suit, action or proceeding instituted by the Trustee shall be brought
in the name of the Trustee for the benefit of all the Holders of such
Certificates, subject to the provisions of this Agreement. In order to
comply with its duties under the U.S.A. Patriot Act, the Trustee shall
obtain and verify certain information and documentation from the other
parties hereto including but not limited to such parties' name,
address, and other identifying information.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage
Loans.
The recitals contained herein and in the Certificates (other
than the signature of the Trustee, the authentication of the Certificate
Registrar on the Certificates, the acknowledgments of the Trustee contained in
Article II and the representations and warranties of the Trustee in Section
8.13) shall be taken as the statements of the Depositor and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations or
warranties as to the validity or sufficiency of this Agreement (other than as
specifically set forth with respect to such party in Section 8.13) or of the
Certificates (other than the signature of the Trustee and authentication of the
Certificate Registrar on the Certificates) or of any Mortgage Loan or related
document. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor or either Servicer
in respect of the Mortgage Loans or deposited in or withdrawn from the related
Collection Account by such Servicer, other than any funds held by or on behalf
of the Trustee and any amounts held by or on behalf of the Trustee in accordance
with Section 3.10.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual capacity or any other capacity
may become the owner or pledgee of Certificates with the same rights it would
have if it were not Trustee.
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SECTION 8.05. Trustee's Fees and Expenses.
(a) The Trustee shall withdraw from the Distribution Account
on each Distribution Date and pay to itself the Trustee Fee. The Trustee, or any
director, officer, employee or agent of the Trustee shall be indemnified by
REMIC I and held harmless against any loss, liability or expense (not including
expenses, disbursements and advances incurred or made by the Trustee including
the compensation and the expenses and disbursements of its agents and counsel,
in the ordinary course of the Trustee's performance in accordance with the
provisions of this Agreement) incurred by the Trustee in connection with any
Servicer Event of Default (not including expenses, disbursements and advances
incurred or made by the Trustee in its capacity as a successor Servicer),
default, claim or legal action or any pending or threatened claim or legal
action arising out of or in connection with the acceptance or administration of
its obligations and duties under this Agreement or any document executed in
connection herewith, other than any loss, liability or expense (i) resulting
from a breach of either Servicer's obligations and duties under this Agreement
and the Mortgage Loans (for which such Servicer shall indemnify pursuant to
Section 8.05(b)), (ii) for the expenses of preparing and filing Tax Returns
pursuant to Section 10.01(d) or (iii) any loss, liability or expense incurred by
reason of its willful misfeasance, bad faith or negligence in the performance of
its duties hereunder or by reason of reckless disregard of its respective
obligations and duties hereunder. Any amounts payable to the Trustee, or any
director, officer, employee or agent of the Trustee in respect of the
indemnification provided by this paragraph (a), or pursuant to any other right
of reimbursement from the Trust Fund that the Trustee, or any director, officer,
employee or agent of the Trustee, may have hereunder in its capacity as such,
may be withdrawn by the Trustee from the Distribution Account at any time.
(b) New Century Mortgage Corporation and the Trustee have
entered into a fee letter governing the terms of reimbursement of certain
expenses of the Trustee not otherwise reimbursable to the Trustee from the Trust
Fund as set forth above. Furthermore, each Servicer agrees to indemnify the
Trustee from, and hold it harmless against, any loss, liability or expense
resulting from the negligence or willful misconduct of such Servicer in the
performance of its duties hereunder or a breach of such Servicer's obligations
and duties under this Agreement. Such indemnity shall survive the termination or
discharge of this Agreement and the resignation or removal of the Trustee. Any
payment hereunder made by either Servicer to the Trustee shall be from such
Servicer's own funds, without reimbursement from the Trust Fund therefor.
(c) The Servicer shall pay any annual rating agency fees of
the Rating Agencies for ongoing surveillance from its own funds without right of
reimbursement.
The provisions of this Section 8.05 shall survive the
termination of this Agreement or the earlier resignation or removal of the
Trustee.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
an association (other than the Depositor, the Seller, each Servicer or any
Affiliate of the foregoing) organized and doing business under
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the laws of any state or the United States of America, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal or
state authority. If such corporation or association publishes reports of
conditions at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the
trust hereby created by giving written notice thereof to the Depositor, each
Servicer, the Certificate Insurer, the Guarantor and the Certificateholders.
Upon receiving such notice of resignation of the Trustee, the Depositor shall
promptly appoint a successor trustee acceptable to the Controlling Person (as
provided in Section 1.03) by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor trustee. A copy
of such instrument shall be delivered to the Certificateholders, the Certificate
Insurer, the Guarantor, the Trustee and each Servicer by the Depositor. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation or removal, the
Certificate Insurer may appoint a successor Trustee, and if the Certificate
Insurer fails to do so within 30 days, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Controlling Person, or if at
any time the Trustee shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor or the Controlling Person may remove the Trustee
and the Depositor may appoint a successor trustee acceptable to the Controlling
Person (as provided in Section 1.03) by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the successor
trustee. A copy of such instrument shall be delivered to the Certificateholders,
the Certificate Insurer, the Guarantor and each Servicer by the Depositor. If no
successor Trustee shall have been so appointed and having accepted appointment
within 30 days after the giving of such notice of resignation, then the
Controlling Person (as provided in Section 1.03) may appoint a successor
Trustee.
The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee so removed
and one complete set to the successor so appointed. A copy of such instrument
shall be delivered to the Certificateholders, the Guarantor and each Servicer by
the Depositor.
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Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Certificate
Insurer, the Guarantor and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as Trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements, as well as all moneys, held by it hereunder (other than any
Mortgage Files at the time held by a custodian, which custodian shall become the
agent of any successor trustee hereunder), and the Depositor and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06 and the appointment of such
successor trustee shall not result in a downgrading of any Class of Certificates
by either Rating Agency, as evidenced by a letter from each Rating Agency.
Upon acceptance of appointment by a successor trustee as
provided in this Section, the Depositor shall mail notice of the succession of
such trustee hereunder to the Certificate Insurer and all Holders of
Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Depositor.
Notwithstanding anything to the contrary contained herein, so
long as no Certificate Insurer Default exists, the appointment of any successor
Trustee pursuant to any provision of this Agreement will be subject to the prior
written consent of the Certificate Insurer.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation or association into which the Trustee may be
merged or converted or with which it may be consolidated or any corporation or
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or association succeeding to the
business of the Trustee shall be the successor of the Trustee hereunder,
provided such corporation or association shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of REMIC I or property securing the same may at the time be located, the
applicable Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee and the Controlling Person (as provided in Section 1.03)
to act as co-trustee or co-trustees, jointly with the Trustee, or separate
trustee or separate trustees, of all or any part of REMIC I-A, REMIC I-B or
REMIC I-C, and to vest in such Person or Persons, in such capacity, such title
to REMIC I-A, REMIC I-B or REMIC I-C, as applicable, or any part thereof, and,
subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the applicable Servicer and the Trustee may
consider necessary or desirable. Any such co-trustee or separate trustee shall
be subject to the written approval of each Servicer. If the applicable Servicer
shall not have joined in such appointment or the Controlling Person (as provided
in Section 1.03) shall not have approved such appointment within 15 days after
the receipt by it of a request so to do, or in case a Servicer Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed by the Trustee (whether
as Trustee hereunder or as successor to a defaulting Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to REMIC I or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trust conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Depositor and each Servicer.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee
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shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11. [Reserved].
SECTION 8.12. Appointment of Office or Agency.
The Trustee will designate an office or agency in the City of
New York where the Certificates may be surrendered for registration of transfer
or exchange, and presented for final distribution, and where notices and demands
to or upon the Trustee in respect of the Certificates and this Agreement may be
delivered. As of the Closing Date, the Trustee designates the office of its
agent located c/o DTC Transfer Agent Services, 00 Xxxxx Xxxxxx, Xxxxxxxx Xxxx
Entrance, Xxx Xxxx, XX 00000 for such purposes.
SECTION 8.13. Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants, solely as to
itself, to each Servicer, the Certificate Insurer and the Guarantor and the
Depositor, as of the Closing Date, that:
(i) It is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States.
(ii) The execution and delivery of this Agreement by it, and
the performance and compliance with the terms of this Agreement by it,
will not violate its charter or bylaws.
(iii) It has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of it, enforceable against it in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
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ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Guarantor, each
Servicer and the Trustee (other than the obligations of each Servicer to the
Trustee pursuant to Section 8.05 and of each Servicer to make remittances to the
Trustee and the Trustee to make payments in respect of the REMIC Regular
Interests and the Classes of Certificates as hereinafter set forth) shall
terminate upon the latest of (A) the payment in full of all amounts owing to the
Guarantor hereunder unless the Guarantor shall otherwise consent, (B) the
payment in full of all amounts owing to the Certificate Insurer hereunder and
under the Insurance Agreement unless the Certificate Insurer shall otherwise
consent and (C) payment to the Certificateholders and the deposit of all amounts
held by or on behalf of the Trustee and required hereunder to be so paid or
deposited on the Distribution Date coinciding with or following the earlier to
occur of (i) the purchase by the Terminator (as defined below) of all Mortgage
Loans and each REO Property remaining in REMIC I-A, REMIC I-B or REMIC I-C, as
applicable, and (ii) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in REMIC I;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. Subject to Section 3.10
hereof, the purchase by the Terminator of all Mortgage Loans and each REO
Property remaining in REMIC I-A, REMIC I-B or REMIC I-C, as applicable, shall be
at a price equal to the greater of (i) the Stated Principal Balance of the
Mortgage Loans and the appraised value of any REO Properties, such appraisal to
be conducted by an Independent appraiser mutually agreed upon by the Terminator
and the Trustee in their reasonable discretion and (ii) the fair market value of
the Mortgage Loans and the REO Properties (as determined by the Terminator and,
to the extent that the Class A Certificates or a Class of Mezzanine Certificates
will not receive all amounts owed to it as a result of the termination, the
Trustee (it being understood and agreed that any determination by the Trustee
shall be made solely in reliance on an appraisal by an Independent appraiser as
provided above), as of the close of business on the third Business Day next
preceding the date upon which notice of any such termination is furnished to the
related Certificateholders pursuant to Section 9.01(c)), in each case plus
accrued and unpaid interest thereon at the weighted average of the Mortgage
Rates through the end of the Due Period preceding the final Distribution Date
plus unreimbursed Servicing Advances, P&I Advances, any unpaid Servicing Fees
allocable to such Mortgage Loans and REO Properties, any unpaid Guarantor
Reimbursement Amount, Guaranty Fees, Certificate Insurer premiums and
Reimbursement Amounts and any accrued and unpaid Net WAC Rate Carryover Amounts
(the "Termination Price"); provided, however, such option may only be exercised
if the Termination Price is sufficient to pay all interest accrued on, as well
as amounts necessary to retire the principal balance of, each class of notes
issued pursuant to the Indenture. If the determination of the fair market value
of the Mortgage Loans and REO Properties shall be required to be made by the
Terminator and an Independent appraiser as provided above, (A) such appraisal
shall be obtained at no expense to the Trustee and (B) the Trustee may
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conclusively rely on, and shall be protected in relying on, such appraisal. The
consent of the Certificate Insurer shall be required prior to a termination
pursuant to this Section 9.01(a). In addition, if a termination pursuant to this
Section 9.01(a) will result in a draw on the Guaranty, the consent of the
Guarantor shall be required prior to the Terminator exercising such option.
(b) With respect to the Group I Mortgage Loans and the Group
II Mortgage Loans, the majority holder of the related Class CE Certificates or
if the majority holder of the related Class CE Certificates fails to exercise
such option, the related Servicer and with respect to the Group III Mortgage
Loans, the related Servicer (in each case, with the consent of the Certificate
Insurer) shall have the right (the party exercising such right, the
"Terminator"), to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC I-A, REMIC I-B or REMIC I-C, as applicable, pursuant to
clause (i) of the preceding paragraph no later than the Determination Date in
the month immediately preceding the Distribution Date on which the Certificates
will be retired; provided, however, that the Terminator may elect to purchase
all of the Mortgage Loans and each REO Property remaining in REMIC I-A, REMIC
I-B or REMIC I-C, as applicable, pursuant to clause (i) of the preceding
paragraph only if the aggregate Stated Principal Balance of the Mortgage Loans
and each REO Property remaining in REMIC I-A, REMIC I-B or REMIC I-C, as
applicable, at the time of such election is reduced to less than 10% of the sum
of the aggregate Stated Principal Balance of the Mortgage Loans in REMIC I-A,
REMIC I-B or REMIC I-C, as applicable, as of the Cut-off Date and the Initial
Deposit. The Terminator shall not be entitled to exercise a purchase right under
this Section 9.01, without the Guarantor's consent, if the distribution of the
Termination Price according to such priorities would result in the Guarantor
being required to make a Guarantor Payment on the applicable Distribution Date.
By acceptance of the Residual Certificates, the Holder of the Residual
Certificates agrees, in connection with any termination hereunder, to assign and
transfer any amounts in excess of par, and to the extent received in respect of
such termination, to pay any such amounts to the Holders of the related Class CE
Certificates.
(c) Notice of the liquidation of the related Certificates
shall be given promptly by the Trustee by letter to Certificateholders and the
Certificate Insurer mailed (a) in the event such notice is given in connection
with the purchase of the Mortgage Loans and each REO Property by the Terminator,
not earlier than the 15th day and not later than the 25th day of the month next
preceding the month of the final distribution on the Certificates or (b)
otherwise during the month of such final distribution on or before the
Determination Date in such month, in each case specifying (i) the Distribution
Date upon which a Loan Group will terminate and the final payment in respect of
the REMIC I-A Regular Interests, the REMIC I-B Regular Interests or the REMIC
I-C Regular Interests, as applicable, and the related Certificates will be made
upon presentation and surrender of the related Certificates at the office of the
Trustee therein designated, (ii) the amount of any such final payment, (iii)
that no interest shall accrue in respect of the the REMIC I-A Regular Interests,
the REMIC I-B Regular Interests or the REMIC I-C Regular Interests, as
applicable, or the related Certificates from and after the Interest Accrual
Period relating to the final Distribution Date therefor and (iv) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office of the Trustee. In the event such notice is given in connection with the
purchase of all of the Mortgage Loans and each REO Property remaining in REMIC
I-A, REMIC I-B or REMIC I-C by the Terminator, the Terminator shall deliver to
the Trustee for deposit in the Distribution Account not later than the last
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Business Day of the month next preceding the month of the final distribution on
the Certificates an amount in immediately available funds equal to the
above-described purchase price. The Trustee shall remit to each Servicer from
such funds deposited in the Distribution Account (i) any amounts which such
Servicer would be permitted to withdraw and retain from the related Collection
Account pursuant to Section 3.11 and (ii) any other amounts otherwise payable by
the Trustee to the Servicers from amounts on deposit in the Distribution Account
pursuant to the terms of this Agreement, in each case prior to making any final
distributions pursuant to Section 10.01(d) below. Upon certification to the
Trustee by the Terminator of the making of such final deposit, the Trustee shall
promptly release to the Terminator the Mortgage Files for the remaining Mortgage
Loans, and the Trustee shall execute all assignments, endorsements and other
instruments necessary to effectuate such transfer.
Immediately following the deposit of funds in trust hereunder
in respect of all of the Certificates, the Trust Fund shall terminate.
SECTION 9.02 Additional Termination Requirements.
(a) In the event that the Terminator purchases all the
Mortgage Loans and each REO Property or the final payment on or other
liquidation of the last Mortgage Loan or REO Property remaining in
REMIC I-A, REMIC I-B or REMIC I-C, as applicable, pursuant to Section
9.01, the related Loan Group shall be terminated in accordance with the
following additional requirements:
(i) The Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to each Trust REMIC's final
Tax Return pursuant to Treasury regulation Section 1.860F- 1 and shall
satisfy all requirements of a qualified liquidation under Section 860F
of the Code and any regulations thereunder, as evidenced by an Opinion
of Counsel obtained at the expense of the Terminator;
(ii) During such 90-day liquidation period and, at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I-A, REMIC I-B or REMIC
I-C, as applicable, to the Terminator for cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the related Residual
Certificates all cash on hand in REMIC I-A, REMIC I-B or REMIC I-C, as
applicable, (other than cash retained to meet claims), and REMIC I-A,
REMIC I-B or REMIC I-C, as applicable, shall terminate at that time.
(b) At the expense of the requesting Terminator (or, if REMIC
I-A, REMIC I-B or REMIC I-C, as applicable, is being terminated as a
result of the occurrence of the event described in clause (ii) of the
first paragraph of Section 9.01, at the expense of the related Servicer
without the right of reimbursement from the Trust Fund), the Trustee
shall prepare or cause to be prepared documentation required, if any,
in connection with the adoption of a plan of liquidation of each Trust
REMIC pursuant to this Section 9.02.
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(c) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trustee to specify the 90-day liquidation period
for each Trust REMIC, which authorization shall be binding upon all successor
Certificateholders.
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ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Trustee shall elect to treat each Trust REMIC as a
REMIC under the Code and, if necessary, under applicable state law. Each such
election will be made by the Trustee on Form 1066 or other appropriate federal
tax or information return or any appropriate state return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. For the purposes of the REMIC election in respect of REMIC I-A, the
REMIC I-A Regular Interests shall be designated as the Regular Interests in
REMIC I-A and the Class R-I Certificates shall be designated as the Residual
Interest in REMIC I-A. For the purposes of the REMIC election in respect of
REMIC I-B, the REMIC I-B Regular Interests shall be designated as the Regular
Interests in REMIC I-B and the Class R-II Certificates shall be designated as
the Residual Interest in REMIC I-B. For the purposes of the REMIC election in
respect of REMIC I-C, the REMIC I-C Regular Interests shall be designated as the
Regular Interests in REMIC I-C and the Class R-III Certificates Interest shall
be designated as the Residual Interest in REMIC I-C. For the purposes of the
REMIC election in respect of REMIC II, the REMIC II Regular Interests shall be
designated as the Regular Interests in REMIC II and the Class R-II Interest
shall be designated as the Residual Interest in REMIC II. The Group I Class A
Certificates, the Group II Class A Certificates, the Group III Class A
Certificates, each of the Mezzanine Certificates, the Class CE Certificates and
the Class P Certificates (other than the right to receive amounts, if any, from
the Net WAC Rate Carryover Reserve Accounts) shall be designated as the Regular
Interests in REMIC III and the Class R-III Interest shall be designated as the
Residual Interest in REMIC III. The Trustee shall not permit the creation of any
"interests" in any Trust REMIC (within the meaning of Section 860G of the Code)
other than the REMIC I-A Regular Interests, the REMIC I-B Regular Interests, the
REMIC I-C Regular Interests, the REMIC II Regular Interests and the interests
represented by the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day"
of each Trust REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall be reimbursed for any and all expenses
relating to any tax audit of the Trust Fund (including, but not limited to, any
professional fees or any administrative or judicial proceedings with respect to
any Trust REMIC that involve the Internal Revenue Service or state tax
authorities), including the expense of obtaining any tax related Opinion of
Counsel required to be obtained hereunder. The Trustee, as agent for each Trust
REMIC's tax matters person shall (i) act on behalf of the Trust Fund in relation
to any tax matter or controversy involving any Trust REMIC and (ii) represent,
after consultation with the Guarantor and upon accommodation of the Guarantor's
reasonable requests, the Trust Fund in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority with
respect thereto. The holder of the largest Percentage Interest of Class R-I
Certificates shall be designated, in the manner provided under Treasury
regulations section 1.860F-4(d) and Treasury regulations section
301.6231(a)(7)-1, as the tax matters person of REMIC I-A created hereunder. The
holder of the largest Percentage Interest of Class R-II Certificates shall be
designated, in the manner
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provided under Treasury regulations section 1.860F-4(d) and Treasury regulations
section 301.6231(a)(7)- 1, as the tax matters person of REMIC I-B created
hereunder. The holder of the largest Percentage Interest of Class R-III
Certificates shall be designated, in the manner provided under Treasury
regulations section 1.860F-4(d) and Treasury regulations section
301.6231(a)(7)-1, as the tax matters person of REMIC I-C created hereunder. The
holder of the largest Percentage Interest of Class R-X Certificates shall be
designated, in the manner provided under Treasury regulations section
1.860F-4(d) and Treasury regulations section 301.6231(a)(7)-1, as the tax
matters person of REMIC II and REMIC III created hereunder. By their acceptance
thereof, the holder of the largest Percentage Interest of the Residual
Certificates hereby agrees to irrevocably appoint the Trustee or an Affiliate as
its agent to perform all of the duties of the tax matters person for the Trust
Fund.
(d) The Trustee shall prepare, sign and file all of the Tax
Returns (including Form 8811, which must be filed within 30 days following the
Closing Date) in respect of each Trust REMIC created hereunder. The expenses of
preparing and filing such returns shall be borne by the Trustee without any
right of reimbursement therefor.
(e) The Trustee shall perform on behalf of each Trust REMIC
all reporting and other tax compliance duties that are the responsibility of
such REMIC under the Code, the REMIC Provisions or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, as required by the Code, the REMIC Provisions or other
such compliance guidance, the Trustee shall provide (i) to any Transferor of a
Residual Certificate such information as is necessary for the application of any
tax relating to the transfer of a Residual Certificate to any Person who is not
a Permitted Transferee, (ii) to the Certificateholders such information or
reports as are required by the Code or the REMIC Provisions including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption as required) and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who will
serve as the representative of each Trust REMIC. The Depositor shall provide or
cause to be provided to the Trustee, within ten (10) days after the Closing
Date, all information or data that the Trustee reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) The Trustee shall take such action and shall cause each
Trust REMIC created hereunder to take such action as shall be necessary to
create or maintain the status thereof as a REMIC under the REMIC Provisions. The
Trustee shall not take any action or cause the Trust Fund to take any action or
fail to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of any Trust REMIC as a REMIC or (ii) 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) (either such
event, an "Adverse REMIC Event") unless the Trustee has received an Opinion of
Counsel, addressed to the Trustee, the Guarantor and the Certificate Insurer (at
the expense of the party seeking to take such action but in no event at the
expense of the Trustee) to the effect that the contemplated action will not,
with respect to any Trust REMIC, endanger such status or result in the
imposition of such a tax, nor shall either Servicer take or fail to take any
action (whether or not
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authorized hereunder) as to which the Trustee has advised it in writing that it
has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action; provided that each Servicer may
conclusively rely on such Opinion of Counsel and shall incur no liability for
its action or failure to act in accordance with such Opinion of Counsel. In
addition, prior to taking any action with respect to any Trust REMIC or the
respective assets of each, or causing any Trust REMIC to take any action, which
is not contemplated under the terms of this Agreement, each Servicer will
consult with the Trustee or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
Trust REMIC and neither Servicer shall take any such action or cause any Trust
REMIC to take any such action as to which the Trustee has advised it in writing
that an Adverse REMIC Event could occur; provided that each Servicer may
conclusively rely on such writing and shall incur no liability for its action or
failure to act in accordance with such writing. The Trustee may consult with
counsel to make such written advice, and the cost of same shall be borne by the
party seeking to take the action not permitted by this Agreement, but in no
event shall such cost be an expense of the Trustee. At all times as may be
required by the Code, the Trustee will ensure that substantially all of the
assets of REMIC I-A, REMIC I-B and REMIC I-C will consist of "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code, to the extent such
obligations are within the Trustee's control and not otherwise inconsistent with
the terms of this Agreement.
(g) In the event that any tax is imposed on "prohibited
transactions" of any Trust REMIC created hereunder as defined in Section
860F(a)(2) of the Code, on the "net income from foreclosure property" of such
Trust REMIC as defined in Section 860G(c) of the Code, on any contributions to
any such REMIC after the Startup Day therefor pursuant to Section 860G(d) of the
Code, or any other tax is imposed by the Code or any applicable provisions of
state or local tax laws, such tax shall be charged (i) to the Trustee pursuant
to Section 10.03 hereof, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under this Article X, (ii) to the
applicable Servicer pursuant to Section 10.03 hereof, if such tax arises out of
or results from a breach by such Servicer of any of its obligations under
Article III or this Article X, or (iii) against amounts on deposit in the
Distribution Account and shall be paid by withdrawal therefrom.
(h) On or before April 15th of each calendar year, commencing
April 15, 2005, each Servicer shall deliver to the Guarantor, the Certificate
Insurer and each Rating Agency an Officers' Certificate (which may be the
Officer's Certificate required by Section 3.20) of the Servicer stating the
Servicer's compliance with this Article X.
(i) The Trustee shall, for federal income tax purposes,
maintain books and records with respect to each Trust REMIC on a calendar year
and on an accrual basis.
(j) Following the Startup Day, neither Servicer nor the
Trustee shall accept any contributions of assets to any Trust REMIC other than
in connection with any Qualified Substitute Mortgage Loan delivered in
accordance with Section 2.03 unless it shall have received an Opinion of Counsel
to the effect that the inclusion of such assets in the Trust Fund will not cause
the related Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject such Trust
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REMIC to any tax under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(k) Neither the Trustee nor any Servicer shall enter into any
arrangement by which any Trust REMIC will receive a fee or other compensation
for services nor knowingly permit either REMIC to receive any income from assets
other than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02. Prohibited Transactions and Activities.
None of the Depositor, the Servicers or the Trustee shall
sell, dispose of or substitute for any of the Mortgage Loans (except in
connection with (i) the foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed in
lieu of foreclosure, (ii) the bankruptcy of REMIC I-A, REMIC I-B or REMIC I-C,
(iii) the termination of REMIC I-A, REMIC I-B or REMIC I-Cpursuant to Article IX
of this Agreement, (iv) a substitution pursuant to Article II of this Agreement
or (v) a purchase of Mortgage Loans pursuant to Article II or III of this
Agreement), acquire any assets for any Trust REMIC (other than REO Property
acquired in respect of a defaulted Mortgage Loan), sell or dispose of any
investments in the related Collection Account or the Distribution Account for
gain, or accept any contributions to any Trust REMIC after the Closing Date
(other than a Qualified Substitute Mortgage Loan delivered in accordance with
Section 2.03), unless it has received an Opinion of Counsel, addressed to the
Trustee, the Guarantor and the Certificate Insurer (at the expense of the party
seeking to cause such sale, disposition, substitution, acquisition or
contribution but in no event at the expense of the Trustee) that such sale,
disposition, substitution, acquisition or contribution will not (a) affect
adversely the status of any Trust REMIC as a REMIC or (b) cause any Trust REMIC
to be subject to a tax on "prohibited transactions" or "contributions" pursuant
to the REMIC Provisions.
SECTION 10.03. Servicer and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the
Depositor and each Servicer for any taxes and costs including, without
limitation, any reasonable attorneys' fees imposed on or incurred by the Trust
Fund, the Depositor or either Servicer, as a result of a breach of the Trustee's
covenants set forth in this Article X.
(b) Each Servicer agrees to indemnify the Trust Fund, the
Depositor and the Trustee for any taxes and costs including, without limitation,
any reasonable attorneys' fees imposed on or incurred by the Trust Fund, the
Depositor or the Trustee, as a result of a breach of the applicable Servicer's
covenants set forth in Article III or this Article X.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
This Agreement may be amended from time to time by the
Depositor, each Servicer, the Guarantor and the Trustee without the consent of
any of the Certificateholders, but only with the prior written consent of the
Certificate Insurer, (i) to cure any ambiguity or defect, (ii) to correct,
modify or supplement any provisions herein (including to give effect to the
expectations of Certificateholders), or (iii) to make any other provisions with
respect to matters or questions arising under this Agreement or the Policy which
shall not be inconsistent with the provisions of this Agreement, provided that
such actions shall not, adversely affect in any material respect the interests
of any Certificateholder, as evidenced by either (i) an Opinion of Counsel
delivered to the Servicers, the Guarantor, the Certificate Insurer and the
Trustee or (ii) confirmation from the Rating Agencies that such amendment will
not result in the reduction or withdrawal of the rating of any outstanding Class
of Certificates (without regard to the Policy). No amendment shall be deemed to
adversely affect in any material respect the interests of any Certificateholder
who shall have consented thereto, and no Opinion of Counsel or confirmation from
the Rating Agencies shall be required to address the effect of any such
amendment on any such consenting Certificateholder.
This Agreement may also be amended from time to time by the
Depositor, each Servicer, the Guarantor and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights and the
Certificate Insurer for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments received on Mortgage Loans which are required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates (as evidenced by either (i) an Opinion of
Counsel delivered to the Trustee, the Guarantor and the Certificate Insurer or
(ii) written notice to the Depositor, each Servicer, the Guarantor, the
Certificate Insurer and the Trustee from the Rating Agencies that such action
will not result in the reduction or withdrawal of the rating of any outstanding
Class of Certificates with respect to which it is a Rating Agency) in a manner,
other than as described in (i), without the consent of the Holders of
Certificates of such Class evidencing at least 66% of the Voting Rights
allocated to such Class, or (iii) modify the consents required by the
immediately preceding clauses (i) and (ii) without the consent of the Holders of
all Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor or
either Servicer or any Affiliate thereof shall be entitled to Voting Rights with
respect to matters affecting such Certificates.
No amendment shall be deemed to adversely affect in any
material respect the interests of any Certificateholder who shall have consented
thereto, and no Opinion of Counsel or Rating Agency confirmation shall be
required to address the effect of any such amendment on any such consenting
Certificateholder.
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Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel to the effect that such amendment (i)
will not result in the imposition of any tax on any Trust REMIC pursuant to the
REMIC Provisions or cause any Trust REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding and (ii) is authorized or permitted
hereunder.
Promptly after the execution of any such amendment the Trustee
shall furnish a copy of such amendment to each Certificateholder, the Guarantor
and the Certificate Insurer.
It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
The cost of any Opinion of Counsel to be delivered pursuant to
this Section 11.01 shall be borne by the Person seeking the related amendment,
but in no event shall such Opinion of Counsel be an expense of the Trustee.
Notwithstanding the foregoing, any modification of the
provisions of Section 5.02(d) shall be made in accordance with the provisions
thereof and without the consent of the Certificateholders.
The Trustee may, but shall not be obligated to, enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
SECTION 11.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by either Servicer at the expense of the Certificateholders, but only
upon direction of the Certificate Insurer or Certificateholders accompanied by
an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificate Insurer or the
Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
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SECTION 11.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of any of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee and the Certificate Insurer a
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates entitled to at least 25%
of the Voting Rights shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 15 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 11.04. Governing Law.
This Agreement shall be construed in accordance with the laws
of the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws, without the
conflicts of laws provisions thereof
SECTION 11.05. Notices.
All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when received if personally
delivered at or mailed by first class mail, postage prepaid, or by express
delivery service or delivered in any other manner specified herein, to (a) in
the case of the
-191-
Depositor, 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxx Xxxxx (telecopy number: (000) 000-0000), or such other address or telecopy
number as may hereafter be furnished to the parties hereto in writing by the
Depositor, (b) in the case of Countrywide, 000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxx Xxxxx, Xxxxxxx 00000, Attention: Loan Sale Servicing Section, (telecopy:
(561) 330- 2019), or such other address or telecopy number as may hereafter be
furnished to the parties hereto in writing by Countrywide, (c) in the case of
GMAC, 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Senior Vice
President, Capital Markets, or such other address or telecopy number as may
hereafter be furnished to the parties hereto in writing by GMAC, (d) in the case
of the Trustee, Deutsche Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust Administration-NC040A
(telecopy number: (000) 000-0000), or such other address or telecopy number as
may hereafter be furnished to the parties hereto in writing by the Trustee, (e)
in the case of Guarantor, Xxxxxx Xxx, Special Products Group, Mail Stop
5H-5W-03, 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Director
(telecopy number: (000) 000-0000), or such other addresses or telecopy number as
may be furnished to the other parties thereto in writing by the Guarantor and
(f) in the case of the Certificate Insurer, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Chief Risk Officer, with a copy to General Counsel, or such
other address as may be furnished to the parties hereto in writing by the
Certificate Insurer. Any notice required or permitted to be given to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice. A copy of any notice required to be
telecopied hereunder also shall be mailed to the appropriate party in the manner
set forth above.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof or
the rights of the Certificate Insurer.
SECTION 11.07. Notice to Rating Agencies, the Certificate
Insurer and the Guarantor.
The Trustee shall use its best efforts promptly to provide
notice to the Rating Agencies, the Guarantor and the Certificate Insurer with
respect to each of the following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Servicer Event of Default that has
not been cured or waived;
3. The resignation or termination of either Servicer or the
Trustee;
-192-
4. The repurchase or substitution of Mortgage Loans pursuant
to or as contemplated by Section 2.03;
5. The final payment to the Holders of any Class of
Certificates;
6. Any change in the location of either Collection Account or
the Distribution Account; and
7. Any event that would result in the inability of the
Trustee, as a successor Servicer, to make advances regarding delinquent
Mortgage Loans.
In addition, the Trustee shall promptly furnish to each Rating
Agency, the Guarantor and the Certificate Insurer copies of each report to
Certificateholders described in Section 4.02 and each Servicer shall promptly
furnish to each Rating Agency, the Guarantor and the Certificate Insurer copies
of the following:
1. Each annual statement as to compliance described in Section
3.20; and
2. Each annual independent public accountants' servicing
report described in Section 3.21.
Any such notice pursuant to this Section 11.07 shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by first class mail, postage prepaid, or by express delivery service
to Xxxxx'x Investors Service, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and to
Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx Companies,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other addresses as the
Rating Agencies may designate in writing to the parties hereto.
SECTION 11.08. Article and Section References.
All article and section references used in this Agreement,
unless otherwise provided, are to articles and sections in this Agreement.
SECTION 11.09. Grant of Security Interest.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Depositor to the Trustee, be, and be
construed as, a sale of the Mortgage Loans by the Depositor and not a pledge of
the Mortgage Loans to secure a debt or other obligation of the Depositor.
However, in the event that, notwithstanding the aforementioned intent of the
parties, the Mortgage Loans are held to be property of the Depositor, then, (a)
it is the express intent of the parties that such conveyance be deemed a pledge
of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor and (b)(1) this Agreement shall also be deemed to be
a security agreement within the meaning of Articles 8 and 9 of the Uniform
Commercial Code as in effect from time to time in the State of New
-193-
York; (2) the conveyance provided for in Section 2.01 hereof shall be deemed to
be a grant by the Depositor to the Trustee of a security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans and all
amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Accounts and the Distribution Account,
whether in the form of cash, instruments, securities or other property; (3) the
obligations secured by such security agreement shall be deemed to be all of the
Depositor's obligations under this Agreement, including the obligation to
provide to the Certificateholders the benefits of this Agreement relating to the
Mortgage Loans and the Trust Fund; and (4) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. Accordingly, the Depositor hereby grants to the Trustee a
security interest in the Mortgage Loans and all other property described in
clause (2) of the preceding sentence, for the purpose of securing to the Trustee
the performance by the Depositor of the obligations described in clause (3) of
the preceding sentence. Notwithstanding the foregoing, the parties hereto intend
the conveyance pursuant to Section 2.01 to be a true, absolute and unconditional
sale of the Mortgage Loans and assets constituting the Trust Fund by the
Depositor to the Trustee.
SECTION 11.10. Waiver of Jury Trial.
EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY,
WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND
AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY.
SECTION 11.11. Rights of the Certificate Insurer.
(a) The Certificate Insurer is an express third-party
beneficiary of this Agreement.
(b) On each Distribution Date the Trustee shall make available
to the Certificate Insurer a copy of the reports furnished to the
Certificateholders on such Distribution Date.
(c) The Trustee or the Depositor, as applicable, shall provide
to the Certificate Insurer copies of any report, notice, Opinion of Counsel,
Officers' Certificate, request for consent or request for amendment to any
document related hereto promptly upon the Trustee's or the Depositor's
production or receipt thereof, but only to the extent that such item is required
to be delivered to the Certificate Insurer hereunder.
-194-
(d) Unless a Certificate Insurer Default exists, the Trustee,
each Servicer, the Guarantor and the Depositor shall not agree to any amendment
to this Agreement without first having obtained the prior written consent of the
Certificate Insurer.
(e) So long as there does not exist a failure by the
Certificate Insurer to make a required payment under the Policy, the Certificate
Insurer shall have the right to exercise all rights of the Holders of the
Insured Certificates under this Agreement without any consent of such Holders,
and such Holders may exercise such rights only with the prior written consent of
the Certificate Insurer, except as provided herein.
(f) The Certificate Insurer shall not be entitled to exercise
any of its rights hereunder so long as there exists a failure by the Certificate
Insurer to make a required payment under the Policy.
-195-
IN WITNESS WHEREOF, the Depositor, each Servicer, the
Guarantor and the Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized, in each case as of the day and
year first above written.
NEW CENTURY MORTGAGE SECURITIES INC.,
as Depositor
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
COUNTRYWIDE HOME LOANS SERVICING LP,
as a Servicer
By: /s/ Xxxxxxx Xxxxxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Senior Vice President
GMAC MORTGAGE CORPORATION
as a Servicer
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: VP - Bulk Acquisitions
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
as Trustee
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Associate
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Asst. Vice President
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
as Guarantor (with respect to the Class
A-I-A Certificates)
By: /s/ Xxxxxx XxXxxxxxx
----------------------------------
Name: Xxxxxx XxXxxxxxx
Title: SVP- Portfolio Transactions
STATE OF ______________)
) ss.:
COUNTY OF ____________ )
On the th day of July 2004, before me, a notary public in and
for said State, personally appeared ________________, known to me to be a
___________________ of New Century Mortgage Securities Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________
Notary Public
[Notarial Seal]
STATE OF ______________)
) ss.:
COUNTY OF ____________ )
On the ____ day of July 2004, before me, a notary public in
and for said State, personally appeared _____________________, known to me to be
__________________ of Countrywide Home Loans Servicing, LP, one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________
Notary Public
[Notarial Seal]
STATE OF ______________)
) ss.:
COUNTY OF ____________ )
On the ____ day of July 2004, before me, a notary public in
and for said State, personally appeared _____________________, known to me to be
__________________ of GMAC Mortgage Corporation, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________
Notary Public
[Notarial Seal]
STATE OF ______________)
) ss.:
COUNTY OF ____________ )
On the ____ day of July 2004, before me, a notary public in
and for said State, personally appeared _______________, known to me to be a
______________ of Deutsche Bank National Trust Company, one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________
Notary Public
[Notarial Seal]
STATE OF ______________)
) ss.:
COUNTY OF ____________ )
On the ____ day of July 2004, before me, a notary public in
and for said State, personally appeared _____________________, known to me to be
__________________ of Federal National Mortgage Association, one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________
Notary Public
[Notarial Seal]
EXHIBIT A-1
-----------
FORM OF CLASS A-I-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-I-1 Certificates as of the Issue Date:
Pass-Through Rate: Variable $161,966,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $161,966,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HE 4
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-1-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-I-1 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-I-1 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-I-1 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-1-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-1-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-1-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-1-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS A-I-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-I-2 Certificates as of the Issue Date:
Pass-Through Rate: 3.930% $50,274,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $50,274,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HF 1
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-2-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-I-2 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-I-2 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-I-2 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-2-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-2-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-2-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-2-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-2-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS A-I-3 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-I-3 Certificates as of the Issue Date:
Pass-Through Rate: 4.420% per annum $97,679,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $97,679,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HG 9
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-3-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-I-3 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-I-3 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-I-3 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-3-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-3-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-3-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-3-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-3-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS A-I-4 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-I-4 Certificates as of the Issue Date:
Pass-Through Rate: 4.800% $38,048,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $38,048,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HH 7
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-4-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-I-4 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-I-4 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-I-4 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-4-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-4-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-4-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-4-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-4-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS A-I-5 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-I-5 Certificates as of the Issue Date:
Pass-Through Rate: 5.170% $54,747,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $54,747,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HJ 3
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-5-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-I-5 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-I-5 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-I-5 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-5-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-5-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-5-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-5-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-5-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS A-I-6 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-I-6 Certificates as of the Issue Date:
Pass-Through Rate: 5.640% $50,372,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $50,372,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HK 0
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-6-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-I-6 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-I-6 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-I-6 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-6-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-6-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-6-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-6-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-6-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS A-I-7 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-I-7 Certificates as of the Issue Date:
Pass-Through Rate: 5.650% $36,901,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $36,901,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HL 8
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-7-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-I-7 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-I-7 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-I-7 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-7-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-7-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-7-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-7-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-7-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS A-I-8 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-I-8 Certificates as of the Issue Date:
Pass-Through Rate: 5.650% $73,135,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $73,135,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HM 6
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-8-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-I-8 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-I-8 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-I-8 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-8-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-8-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-8-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-8-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-8-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
X-0-0
XXXXXXX X-0
-----------
FORM OF CLASS A-I-9 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-I-9 Certificates as of the Issue Date:
Pass-Through Rate: 5.450% $62,569,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $62,569,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HN 4
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-9-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-I-9 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-I-9 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-I-9 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-9-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-9-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-9-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-9-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-9-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-1-7
EXHIBIT A-10
------------
FORM OF CLASS A-II-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-II-1 Certificates as of the Issue Date:
Pass-Through Rate: Variable $105,759,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $105,759,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GN 5
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-10-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-II-1 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-II- 1Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-II-1 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-10-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-10-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-10-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-10-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-10-6
EXHIBIT A-11
------------
FORM OF CLASS A-II-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-II-2 Certificates as of the Issue Date:
Pass-Through Rate: 3.930% per annum $32,918,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $32,918,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GP 0
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-11-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-II-2 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-II- 2 Certificates in REMIC III created pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-II-2 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-11-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-11-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-11-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-11-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-11-6
EXHIBIT A-12
------------
FORM OF CLASS A-II-3 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-II-3 Certificates as of the Issue Date:
Pass-Through Rate: 4.450% per annum $63,881,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $63,881,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GQ 8
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-12-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-II-3 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-II- 3 Certificates in REMIC III created pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-II-3 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-12-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-12-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-12-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-12-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-12-6
EXHIBIT A-13
------------
FORM OF CLASS A-II-4 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-II-4 Certificates as of the Issue Date:
Pass-Through Rate: 4.860% per annum $25,302,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $25,302,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GR 6
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-13-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-II-4 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-II- 4Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-II-4 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-13-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-13-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-13-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-13-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-13-6
EXHIBIT A-14
------------
FORM OF CLASS A-II-5 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-II-5 Certificates as of the Issue Date:
Pass-Through Rate: 5.250% per annum $43,020,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $43,020,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GS 4
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-14-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-II-4 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-II- 4Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-II-1 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-14-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-14-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-14-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-14-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-14-6
EXHIBIT A-15
------------
FORM OF CLASS A-II-6 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-II-6 Certificates as of the Issue Date:
Pass-Through Rate: 5.650% per annum $44,977,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $44,977,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GT 2
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-15-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-II-6 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-II- 6Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-II-6 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-15-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-15-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-15-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-15-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-15-6
EXHIBIT A-16
------------
FORM OF CLASS A-II-7 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-II-7 Certificates as of the Issue Date:
Pass-Through Rate: 5.650% per annum $30,825,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $30,825,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GU 9
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-16-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-II-7 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-II- 7 Certificates in REMIC III created pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-II-7 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-16-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-16-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-16-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-16-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-16-6
EXHIBIT A-17
------------
FORM OF CLASS A-II-8 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-II-8 Certificates as of the Issue Date:
Pass-Through Rate: 5.650% per annum $60,496,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $60,496,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GV 7
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-17-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-II-8 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-II- 8 Certificates in REMIC III created pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-II-8 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) One-Month LIBOR plus 0.170%,
in the case of each Distribution Date and (ii) the Net WAC Pass-Through Rate for
such Distribution Date.
A-17-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but
A-17-3
does not require, the party designated in the Agreement to purchase from REMIC
II all the Mortgage Loans and all property acquired in respect of any Mortgage
Loan at a price determined as provided in the Agreement. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Loans at the time of purchase being less than 10% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-17-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-17-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-17-6
A-17-7
EXHIBIT A-18
------------
FORM OF CLASS A-II-9 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-II-9 Certificates as of the Issue Date:
Pass-Through Rate: 5.470% per annum $45,242,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $45,242,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GW 5
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-18-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-II-9 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-II- 9 Certificates in REMIC III created pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-II-9 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-18-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-18-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-18-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-18-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-18-6
EXHIBIT A-19
------------
FORM OF CLASS A-III-A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-III-A Certificates as of the Issue Date:
Pass-Through Rate: Variable $194,330,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $194,330,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GZ 8
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-19-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-III- A
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class A-III-ACertificates in REMIC III created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among New Century Mortgage Securities, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Servicers,
Federal National Mortgage Association (the "Guarantor", with respect to the
Group I Class A Certificates) and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-III-A Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-19-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-19-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-19-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-19-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-19-6
EXHIBIT A-20
------------
FORM OF CLASS A-III-B1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-III-B1 Certificates as of the Issue Date:
Pass-Through Rate: Variable $173,427,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $173,427,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HA 2
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-20-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-III- B1
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class A-III-B1Certificates in REMIC III created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among New Century Mortgage Securities, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Servicers,
Federal National Mortgage Association (the "Guarantor", with respect to the
Group I Class A Certificates) and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-III-B1 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-20-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-20-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-20-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-20-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-20-6
EXHIBIT A-21
------------
FORM OF CLASS A-III-B2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
Series 2004-A Aggregate Certificate Principal Balance of the
Class A-III-B2 Certificates as of the Issue Date:
Pass-Through Rate: Variable $84,078,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $84,078,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HB 0
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-21-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-III- B2
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class A-III-B2Certificates in REMIC III created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among New Century Mortgage Securities, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Servicers,
Federal National Mortgage Association (the "Guarantor", with respect to the
Group I Class A Certificates) and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-III-B2 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
A-21-2
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the
A-21-3
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from REMIC II all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan at a price determined as provided in the Agreement.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Loans at the time of purchase being less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-21-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-21-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-21-5
EXHIBIT A-22
------------
FORM OF CLASS M-I-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES OF
THE RELATED GROUP TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class M-I-1 Certificates as of the Issue Date:
Pass-Through Rate: 5.650% per annum $65,479,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $65,479,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GK 1
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
EACH BENEFICIAL OWNER OF THIS CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS
ACQUISITION OR HOLDING OF THIS 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 PROHIBITED TRANSACTION EXEMPTION 2002-41 AS
AMENDED ("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE
CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION,
INCLUDING THAT THIS CERTIFICATE MUST BE RATED, AT THE TIME OF
PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY FITCH,
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
A-22-1
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. ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-I-1 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-I- 1 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to the Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class M-I-1 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the
A-22-2
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
Each beneficial owner of this Certificate or any interest
therein shall be deemed to have represented, by virtue of its acquisition or
holding of this 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 Fitch, 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.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all
A-22-3
purposes, and none of the Depositor, the Servicers, the Trustee nor any such
agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-22-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-22-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-22-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-22-7
EXHIBIT A-23
------------
FORM OF CLASS M-I-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES OF
THE RELATED GROUP TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class M-I-2 Certificates as of the Issue Date:
Pass-Through Rate: 5.650% per annum $7,275,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $7,275,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GL 9
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
EACH BENEFICIAL OWNER OF THIS CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS
ACQUISITION OR HOLDING OF THIS 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 PROHIBITED TRANSACTION EXEMPTION 2002-41 AS
AMENDED ("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE
CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION,
INCLUDING THAT THIS CERTIFICATE MUST BE RATED, AT THE TIME OF
PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY FITCH,
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
A-23-1
TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND (3) THE
CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN
SATISFIED.
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-I-2 Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-I- 2 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement),the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to Group I Class A
Certificates) and the Trustee, a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class M-I-2 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the
A-23-2
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
Each beneficial owner of this Certificate or any interest
therein shall be deemed to have represented, by virtue of its acquisition or
holding of this 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 Fitch, 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.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all
A-23-3
purposes, and none of the Depositor, the Servicers, the Trustee nor any such
agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-23-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-23-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-23-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-23-7
EXHIBIT A-24
------------
FORM OF CLASS M-II CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES OF
THE RELATED GROUP TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class M-II Certificates as of the Issue Date:
Pass-Through Rate: 5.650% per annum $4,763,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $4,763,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GX 3
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
EACH BENEFICIAL OWNER OF THIS CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS
ACQUISITION OR HOLDING OF THIS 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 PROHIBITED TRANSACTION EXEMPTION 2002-41 AS
AMENDED ("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE
CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION,
INCLUDING THAT THIS CERTIFICATE MUST BE RATED, AT THE TIME OF
PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY FITCH,
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
A-24-1
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.
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-II Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-II Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement),the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to Group I Class A
Certificates) and the Trustee, a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class M-II Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and
A-24-2
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
Each beneficial owner of this Certificate or any interest
therein shall be deemed to have represented, by virtue of its acquisition or
holding of this 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 Fitch, 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.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all
A-24-3
purposes, and none of the Depositor, the Servicers, the Trustee nor any such
agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-24-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-24-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-24-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-24-7
EXHIBIT A-25
------------
FORM OF CLASS M-III CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES OF
THE RELATED GROUP TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class M-III Certificates as of the Issue Date:
Pass-Through Rate: Variable $9,512,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $9,512,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HC 8
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
EACH BENEFICIAL OWNER OF THIS CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS
ACQUISITION OR HOLDING OF THIS 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 PROHIBITED TRANSACTION EXEMPTION 2002-41 AS
AMENDED ("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE
CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION,
INCLUDING THAT THIS CERTIFICATE MUST BE RATED, AT THE TIME OF
PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY FITCH,
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
A-25-1
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.
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-I- III
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class M-III Certificates in REMIC III created pursuant to a
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among New Century Mortgage Securities, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement),the Servicers,
Federal National Mortgage Association (the "Guarantor", with respect to Group I
Class A Certificates) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class M-III Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and
A-25-2
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
Each beneficial owner of this Certificate or any interest
therein shall be deemed to have represented, by virtue of its acquisition or
holding of this 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 Fitch, 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.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all
A-25-3
purposes, and none of the Depositor, the Servicers, the Trustee nor any such
agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-25-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-25-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-25-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-25-7
EXHIBIT A-26
------------
FORM OF CLASS B-I CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND
THE CLASS M CERTIFICATES OF THE RELATED GROUP TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class B-I Certificates as of the Issue Date:
Pass-Through Rate: 5.650% per annum $7,276,000
Cut-off Date and date of Pooling and Servicing Denomination: $7,276,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GM 7
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-26-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class B-I Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class B-I Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement),the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to Group I Class A
Certificates) and the Trustee, a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-I Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the
A-26-2
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the
A-26-3
Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-26-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-26-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-26-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-26-7
EXHIBIT A-27
------------
FORM OF CLASS B-II CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND
THE CLASS M CERTIFICATES OF THE RELATED GROUP TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class B-II Certificates as of the Issue Date:
Pass-Through Rate: 5.650% per annum $4,762,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $4,762,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V GY 1
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-27-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class B-II Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class B-II Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement),the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to Group I Class A
Certificates) and the Trustee, a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-II Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-27-2
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of
A-27-3
purchase being less than 10% of the aggregate Principal Balance of the Mortgage
Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-27-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-27-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-27-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-27-7
EXHIBIT A-28
------------
FORM OF CLASS B-III CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND
THE CLASS M CERTIFICATES OF THE RELATED GROUP TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class B-III Certificates as of the Issue Date:
Pass-Through Rate: Variable $7,134,000.00
Cut-off Date and date of Pooling and Servicing Denomination: $7,134,000.00
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
CUSIP: 64352V HD 6
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-28-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that Cede & Co is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class B-III Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class B-III Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among New
Century Mortgage Securities, Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement),the Servicers, Federal
National Mortgage Association (the "Guarantor", with respect to Group I Class A
Certificates) and the Trustee, a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-III Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the
A-28-2
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the
A-28-3
Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-28-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:_________________________________
Authorized Signatory
A-28-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-28-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-28-7
EXHIBIT A-29
------------
FORM OF CLASS CE-I CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES,
THE MEZZANINE CERTIFICATES AND THE CLASS B CERTIFICATES OF THE
RELATED GROUP TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class CE-I Certificates as of the Issue Date:
Pass-Through Rate: Variable $21,827,003.28
Cut-off Date and date of Pooling and Servicing Denomination: $21,827,003.28
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
A-29-1
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-29-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that NC Capital Corporation is the registered
owner of a Percentage Interest (obtained by dividing the denomination of this
Certificate by the aggregate Certificate Principal Balance of the Class CE-I
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class CE-I Certificates in REMIC III created pursuant to a
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among New Century Mortgage Securities, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Servicers,
Federal National Mortgage Association (the "Guarantor", with respect to the
Group I Class A Certificates) and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class CE-I Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-29-3
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicers in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicers 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
A-29-4
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-29-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Signatory
A-29-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-29-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-29-8
EXHIBIT A-30
------------
FORM OF CLASS CE-II CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES,
THE MEZZANINE CERTIFICATES AND THE CLASS B CERTIFICATES OF THE
RELATED GROUP TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class CE-II Certificates as of the Issue Date:
Pass-Through Rate: Variable $14,287,074.02
Cut-off Date and date of Pooling and Servicing Denomination: $14,287,074.02
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
A-30-1
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-30-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that NC Capital Corporation is the registered
owner of a Percentage Interest (obtained by dividing the denomination of this
Certificate by the aggregate Certificate Principal Balance of the Class CE-II
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class CE-II Certificates in REMIC III created pursuant to a
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among New Century Mortgage Securities, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Servicers,
Federal National Mortgage Association (the "Guarantor", with respect to the
Group I Class A Certificates) and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class CE-II Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-30-3
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicers in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicers 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
A-30-4
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-30-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Signatory
A-30-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-30-7
A-30-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-30-9
EXHIBIT A-31
------------
FORM OF CLASS CE-III CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES,
THE MEZZANINE CERTIFICATES AND THE CLASS B CERTIFICATES OF THE
RELATED GROUP TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class CE-III Certificates as of the Issue Date:
Pass-Through Rate: Variable $7,135,259.13
Cut-off Date and date of Pooling and Servicing Denomination: $7,135,259.13
Agreement: July 1, 2004
Servicers: Countrywide Home Loans Servicing LP
First Distribution Date: August 25, 2004 GMAC Mortgage Corporation
No. 1 Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
A-31-1
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-31-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that NC Capital Corporation is the registered
owner of a Percentage Interest (obtained by dividing the denomination of this
Certificate by the aggregate Certificate Principal Balance of the Class CE-III
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class CE-III Certificates in REMIC III created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among New Century Mortgage Securities, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Servicers,
Federal National Mortgage Association (the "Guarantor", with respect to the
Group I Class A Certificates) and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class CE-III Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-31-3
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicers in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicers 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
A-31-4
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-31-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Signatory
A-31-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-31-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-31-8
EXHIBIT A-32
------------
FORM OF CLASS P-I CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED
(THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class P-I Certificates as of the Issue Date:
Cut-off Date and date of Pooling and Servicing $100.00
Agreement: July 1, 2004
Denomination: $100.00
First Distribution Date: August 25, 2004
Servicers: Countrywide Home Loans Servicing LP
No. 1 GMAC Mortgage Corporation
Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-32-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien mortgage loans (the "Mortgage Loans")
formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that NC Capital Corporation is the registered
owner of a Percentage Interest (obtained by dividing the denomination of this
Certificate by the aggregate Certificate Principal Balance of the Class P-I
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class P-I Certificates in REMIC III created pursuant to a
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among New Century Mortgage Securities, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Servicers,
Federal National Mortgage Association (the "Guarantor" with respect to the Group
I Class A Certificate) and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class P-I Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-32-2
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicers in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicers 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
A-32-3
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-32-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Signatory
A-32-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-32-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-32-7
EXHIBIT A-33
------------
FORM OF CLASS P-II CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED
(THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class P-II Certificates as of the Issue Date:
Cut-off Date and date of and Servicing Agreement: $100.00
July 1, 2004
Denomination: $100.00
First Distribution Date: August 25, 2004
Servicers: Countrywide Home Loans Servicing LP
No. 1 GMAC Mortgage Corporation
Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-33-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien mortgage loans (the "Mortgage Loans")
formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that NC Capital Corporation is the registered
owner of a Percentage Interest (obtained by dividing the denomination of this
Certificate by the aggregate Certificate Principal Balance of the Class P-II
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class P-II Certificates in REMIC III created pursuant to a
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among New Century Mortgage Securities, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Servicers,
Federal National Mortgage Association (the "Guarantor", with respect to the
Group I Class A Certificates) and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class P-II Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-33-2
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicers in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicers 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
A-33-3
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-33-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Signatory
A-33-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-33-6
A-33-7
EXHIBIT A-34
------------
FORM OF CLASS P-III CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED
(THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
Series 2004-A Aggregate Certificate Principal Balance of the
Class P-III Certificates as of the Issue Date:
Cut-off Date and date of Pooling and Servicing $100.00
Agreement: July 1, 2004
Denomination: $100.00
First Distribution Date: August 25, 2004
Servicers: Countrywide Home Loans Servicing LP
No. 1 GMAC Mortgage Corporation
Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
A-34-1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien mortgage loans (the "Mortgage Loans")
formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that NC Capital Corporation is the registered
owner of a Percentage Interest (obtained by dividing the denomination of this
Certificate by the aggregate Certificate Principal Balance of the Class P-III
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class P-III Certificates in REMIC III created pursuant to a
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among New Century Mortgage Securities, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement), the Servicers,
Federal National Mortgage Association (the "Guarantor", with respect to the
Group I Class A Certificates) and the Trustee, a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class P-III Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-34-2
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicers, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicers in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicers 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
A-34-3
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The Depositor, the Servicers, the Trustee and any agent of the
Depositor, the Servicers or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicers, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-34-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Signatory
A-34-5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-34-6
EXHIBIT A-35
------------
FORM OF CLASS R-I CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS AMENDED (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN
AFFIDAVIT TO THE TRUSTEE THAT (A) SUCH TRANSFEREE IS NOT (1)
THE UNITED STATES OR ANY POSSESSION THEREOF, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS
SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION
1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER BE REFERRED
TO AS A "DISQUALIFIED ORGANIZATION") OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER
IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH
TRANSFEREE SATISFIES CERTAIN
A-34-7
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF
THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN
THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION
OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH AND THE
PROVISIONS OF SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED
ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP
OF THIS CERTIFICATE.
Series 0000-X Xxxxxxxxx Xxxxxxxxxx Interest of the Class R-I
Certificates as of the Issue Date: 100.00%
Cut-off Date and date of Pooling and Servicing
Agreement: July 1, 2004 Percentage Interest: 100.00%
First Distribution Date: August 25, 2004 Servicers: Countrywide Home Loans Servicing LP
GMAC Mortgage Corporation
No. 1
Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
A-34-8
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that NC Capital Corporation is the registered
owner of the Percentage Interest specified above in that certain beneficial
ownership interest evidenced by all the Class R-I Certificates in REMIC III
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among New Century Mortgage Securities, Inc. (hereinafter
called the "Depositor," which term includes any successor entity under the
Agreement), the Servicers, Federal National Mortgage Association (the
"Guarantor", with respect to the Group I Class A Certificates) and the Trustee,
a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class R-I Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-34-9
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicer in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicer 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
A-34-10
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trustee (i) an affidavit to the effect that such transferee is any Person other
than a Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R-I Certificates have been designated as a
residual interest in a REMIC, (B) it will include in its income a PRO RATA share
of the net income of the Trust Fund and that such income may be an "excess
inclusion," as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R-I Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall be
deemed to be of no legal force or effect whatsoever and such Person shall not be
deemed to be a Certificateholder for any purpose, including, but not limited to,
the receipt of distributions in respect of this Certificate.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have consented to the provisions of Section 5.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause the Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
A-34-11
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-34-12
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Signatory
A-34-13
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-34-14
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-34-15
EXHIBIT A-36
------------
FORM OF CLASS R-II CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS AMENDED (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN
AFFIDAVIT TO THE TRUSTEE THAT (A) SUCH TRANSFEREE IS NOT (1)
THE UNITED STATES OR ANY POSSESSION THEREOF, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS
SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION
1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER BE REFERRED
TO AS A "DISQUALIFIED ORGANIZATION") OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER
IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH
TRANSFEREE SATISFIES CERTAIN
A-36-1
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF
THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN
THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION
OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH AND THE
PROVISIONS OF SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED
ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP
OF THIS CERTIFICATE.
Series 0000-X Xxxxxxxxx Xxxxxxxxxx Interest of the Class R-II
Certificates as of the Issue Date: 100.00%
Cut-off Date and date of Pooling and Servicing
Agreement: July 1, 2004 Percentage Interest: 100.00%
First Distribution Date: August 25, 2004 Servicers: Countrywide Home Loans Servicing LP
GMAC Mortgage Corporation
No. 1
Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
A-36-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that NC Capital Corporation is the registered
owner of the Percentage Interest specified above in that certain beneficial
ownership interest evidenced by all the Class R-II Certificates in REMIC III
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among New Century Mortgage Securities, Inc. (hereinafter
called the "Depositor," which term includes any successor entity under the
Agreement), the Servicers, Federal National Mortgage Association (the
"Guarantor", with respect to the Group I Class A Certificates) and the Trustee,
a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class R-II Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-36-3
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicer in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicer 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
A-36-4
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trustee (i) an affidavit to the effect that such transferee is any Person other
than a Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R-II Certificates have been designated as a
residual interest in a REMIC, (B) it will include in its income a PRO RATA share
of the net income of the Trust Fund and that such income may be an "excess
inclusion," as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R-II Certificates. Notwithstanding the
registration in the Certificate Register of any transfer, sale or other
disposition of this Certificate to a Disqualified Organization or an agent
(including a broker, nominee or middleman) of a Disqualified Organization, such
registration shall be deemed to be of no legal force or effect whatsoever and
such Person shall not be deemed to be a Certificateholder for any purpose,
including, but not limited to, the receipt of distributions in respect of this
Certificate.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have consented to the provisions of Section 5.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause the Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
A-36-5
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-36-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Signatory
A-36-7
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-36-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-36-9
EXHIBIT A-37
------------
FORM OF CLASS R-III CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS AMENDED (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN
AFFIDAVIT TO THE TRUSTEE THAT (A) SUCH TRANSFEREE IS NOT (1)
THE UNITED STATES OR ANY POSSESSION THEREOF, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS
SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION
1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER BE REFERRED
TO AS A "DISQUALIFIED ORGANIZATION") OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER
IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH
TRANSFEREE SATISFIES CERTAIN
A-37-1
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF
THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN
THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION
OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH AND THE
PROVISIONS OF SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED
ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP
OF THIS CERTIFICATE.
Series 0000-X Xxxxxxxxx Xxxxxxxxxx Interest of the Class R-III
Certificates as of the Issue Date: 100.00%
Cut-off Date and date of Pooling and
Servicing Agreement: July 1, 2004 Percentage Interest: 100.00%
First Distribution Date: August 25, 2004 Servicers: Countrywide Home Loans Servicing LP
GMAC Mortgage Corporation
No. 1
Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
A-37-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that NC Capital Corporation is the registered
owner of the Percentage Interest specified above in that certain beneficial
ownership interest evidenced by all the Class R-III Certificates in REMIC III
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among New Century Mortgage Securities, Inc. (hereinafter
called the "Depositor," which term includes any successor entity under the
Agreement), the Servicers, Federal National Mortgage Association (the
"Guarantor", with respect to the Group I Class A Certificates) and the Trustee,
a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class R-III Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-37-3
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicer in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicer 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
A-37-4
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trustee (i) an affidavit to the effect that such transferee is any Person other
than a Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R-I Certificates have been designated as a
residual interest in a REMIC, (B) it will include in its income a PRO RATA share
of the net income of the Trust Fund and that such income may be an "excess
inclusion," as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R-I Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall be
deemed to be of no legal force or effect whatsoever and such Person shall not be
deemed to be a Certificateholder for any purpose, including, but not limited to,
the receipt of distributions in respect of this Certificate.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have consented to the provisions of Section 5.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause the Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
A-37-5
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-37-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Signatory
A-37-7
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-37-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-37-9
EXHIBIT A-38
------------
FORM OF CLASS R-X CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS AMENDED (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN
AFFIDAVIT TO THE TRUSTEE THAT (A) SUCH TRANSFEREE IS NOT (1)
THE UNITED STATES OR ANY POSSESSION THEREOF, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS
SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION
1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER BE REFERRED
TO AS A "DISQUALIFIED ORGANIZATION") OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER
IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH
TRANSFEREE SATISFIES CERTAIN
A-38-1
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF
THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN
THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION
OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH AND THE
PROVISIONS OF SECTION 5.02(d) OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED
ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP
OF THIS CERTIFICATE.
Series 0000-X Xxxxxxxxx Xxxxxxxxxx Interest of the Class R-X
Certificates as of the Issue Date: 100.00%
Cut-off Date and date of Pooling and
Servicing Agreement: July 1, 2004 Percentage Interest: 100.00%
First Distribution Date: August 25, 2004 Servicers: Countrywide Home Loans Servicing LP
GMAC Mortgage Corporation
No. 1
Trustee: Deutsche Bank National Trust Company
Issue Date: August 4, 2004
A-38-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans") formed and sold by
NEW CENTURY MORTGAGE SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE
SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
This certifies that NC Capital Corporation is the registered
owner of the Percentage Interest specified above in that certain beneficial
ownership interest evidenced by all the Class R-X Certificates in REMIC III
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among New Century Mortgage Securities, Inc. (hereinafter
called the "Depositor," which term includes any successor entity under the
Agreement), the Servicers, Federal National Mortgage Association (the
"Guarantor", with respect to the Group I Class A Certificates) and the Trustee,
a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class R-X Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto if
such Person shall have so notified the Trustee in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset Backed Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
A-38-3
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicer in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor and the
Servicer 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
A-38-4
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange
of Certificates, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trustee (i) an affidavit to the effect that such transferee is any Person other
than a Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R-X Certificates have been designated as a
residual interest in a REMIC, (B) it will include in its income a PRO RATA share
of the net income of the Trust Fund and that such income may be an "excess
inclusion," as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R-X Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall be
deemed to be of no legal force or effect whatsoever and such Person shall not be
deemed to be a Certificateholder for any purpose, including, but not limited to,
the receipt of distributions in respect of this Certificate.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have consented to the provisions of Section 5.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause the Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining in
REMIC II and (ii) the purchase by the party designated in the Agreement at a
price determined as provided in the Agreement from REMIC II of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC II all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
A-38-5
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-38-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: August __, 2004
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Trustee
By:______________________________
Authorized Signatory
A-38-7
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform
JT TEN - as joint tenants with right Gifts to Minors Act
if survivorship and not as _______________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the Trustee to issue a new Certificate of a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
A-38-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of _______________________________, account number ____________________,
or, if mailed by check, to ____________________________________________________.
Applicable statements should be mailed to _____________________________________.
This information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its agent.
A-38-9
EXHIBIT B
---------
Copy of Policy with respect to Insured Certificates
Available Upon Request
See Tab [__]
A-38-10
EXHIBIT C-1
-----------
FORM OF TRUSTEE'S INITIAL CERTIFICATION
[Date]
New Century Mortgage Securities, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
New Century Mortgage Corporation
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Re: Pooling and Servicing Agreement, dated as of July 1,
2004, among New Century Mortgage Securities, Inc. as
depositor, Countrywide Home Loans Servicing LP and
GMAC Mortgage Corporation as servicers, Federal
National Mortgage Association with respect to the
Group I Class A Certificates and Deutsche Bank
National Trust Company as Trustee, Asset Backed
Pass-Through Certificates, Series 2004-A
-----------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing
Agreement, dated as of July 1, 2004 (the "Agreement"), among New Century
Mortgage Securities, Inc. as Depositor, Countrywide Home Loans Servicing LP and
GMAC Mortgage Corporation, as Servicers, Federal National Mortgage Association
with respect to the Group I Class A Certificates and Deutsche Bank National
Trust Company as trustee, we hereby acknowledge that as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full,
any Delayed Delivery Group I Mortgage Loan or any Mortgage Loan specifically
identified in the exception report annexed thereto as not being covered by such
certification) (i) all documents constituting part of such Mortgage File (other
than such documents described in Section 2.01(v)) required to be delivered to it
pursuant to the Agreement are in its possession, (ii) such documents have been
reviewed by it and appear regular on their face and relate to such Mortgage Loan
and (iii) based on its examination and only as to the foregoing, the information
set forth in the Mortgage Loan Schedule that corresponds to items (i) through
(iii), (vi),(xi), (xii), (xv), (xvii), (xviii), (xx) through (xxiii) and (xxv)
of the definition of "Mortgage Loan Schedule" accurately reflects information
set forth in the Mortgage File.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement.
The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
contained in the Mortgage File of any of the Mortgage Loans identified on the
Mortgage Loan Schedule, (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan, or (iii) whether any Mortgage File
included any of the documents specified in clause (v) of Section 2.01 of the
Agreement.
C-1-1
DEUTSCHE BANK NATIONAL TRUST COMPANY
By:______________________________
Name:
Title:
C-1-2
EXHIBIT C-2
-----------
FORM OF TRUSTEE'S FINAL CERTIFICATION
[Date]
New Century Mortgage Securities, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
New Century Mortgage Corporation
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Re: Pooling and Servicing Agreement, dated as of July 1,
2004, among New Century Mortgage Securities, Inc. as
depositor, Countrywide Home Loans Servicing LP and
GMAC Mortgage Corporation as servicers, Federal
National Mortgage Association with respect to the
Group I Class A Certificates and Deutsche Bank
National Trust Company as Trustee, Asset Backed
Pass-Through Certificates, Series 2004-A
-----------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement, the undersigned, as Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto), it or a
Custodian on its behalf has received:
(i) the original recorded Mortgage, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power of
attorney, or a certified copy thereof in those instances where the
public recording office retains the original or where the original has
been lost; and
(ii) an original Assignment in ______________ or a recorded
Assignment to the Trustee together with the original recorded
Assignment or Assignments showing a complete chain of assignment from
the originator, or a certified copy of such Assignments in those
instances where the public recording retains the original or where
original has been lost; and
(iii) the original lender's title insurance policy.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the above-referenced Pooling and Servicing Agreement. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents contained in the Mortgage
File of any of the Mortgage Loans identified on the Mortgage Loan Schedule, or
(ii) the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
C-2-3
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
By:________________________________
Name:
Title:
C-2-4
EXHIBIT D
---------
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
D-1
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (this "Agreement"),
dated August 2, 2004, between NC Capital Corporation, a California corporation
(the "Seller") and New Century Mortgage Securities, Inc., a Delaware corporation
(the "Purchaser").
Preliminary Statement
---------------------
The Seller intends to sell the Mortgage Loans (as hereinafter
identified) and the Cap Contracts (as defined in the Pooling and Servicing
Agreement) to the Purchaser on the terms and subject to the conditions set forth
in this Agreement. The Purchaser intends to deposit the Mortgage Loans and the
Cap Contracts into a mortgage pool comprising the Trust Fund. The Trust Fund
will be evidenced by a single series of mortgage pass-through certificates
designated as Series 2004-A (the "Certificates"). The Certificates will consist
of thirty-eight classes of certificates. The Class CE Certificates, the Class P
Certificates and the Residual Certificates (collectively, the "NC Capital
Certificates") will be delivered to the Seller or its designee as partial
consideration for the Mortgage Loans as further described below. The
Certificates will be issued pursuant to a Pooling and Servicing Agreement for
Series 2004-A, dated as of July 1, 2004 (the "Pooling and Servicing Agreement"),
among the Purchaser as depositor, Countrywide Home Loans Servicing, LP and GMAC
Mortgage Corporation, as servicers (the "Servicers"), Federal National Mortgage
Association as guarantor with respect to the Group I Class A Certificates (the
"Guarantor") and Deutsche Bank National Trust Company as trustee (the
"Trustee"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement.
The parties hereto agree as follows:
SECTION 1. AGREEMENT TO PURCHASE. The Seller agrees to sell
and the Purchaser agrees to purchase, on or before August 4, 2004 (the "Closing
Date"), certain fixed-rate and adjustable-rate conventional, one- to
four-family, residential mortgage loans (the "Mortgage Loans"), having an
aggregate principal balance as of the close of business on July 1, 2004, (the
"Cut-off Date") of $1,679,396,636.43 (the "Closing Balance"), after giving
effect to all payments due on the Mortgage Loans on or before the Cut-off Date,
whether or not received including the right to any Prepayment Charges payable by
the related Mortgagors in connection with any Principal Prepayments on the
Mortgage Loans.
SECTION 2. MORTGAGE LOAN SCHEDULE. The Purchaser and the
Seller have agreed upon which of the mortgage loans owned by the Seller are to
be purchased by the Purchaser pursuant to this Agreement and the Seller will
prepare or cause to be prepared on or prior to the Closing Date a final schedule
(the "Closing Schedule") that shall describe such Mortgage Loans and set forth
all of the Mortgage Loans to be purchased under this Agreement, including the
Prepayment Charges. The Closing Schedule will conform to the requirements set
forth in this Agreement and to the definition of "Mortgage Loan Schedule" under
the Pooling and Servicing Agreement. The Closing Schedule shall be used as the
Mortgage Loan Schedule under the Pooling and Servicing Agreement.
SECTION 3. CONSIDERATION.
(a) In consideration for the Mortgage Loans to be purchased
hereunder, the Purchaser shall, as described in Section 8, (i) pay to or upon
the order of the Seller in immediately available funds an amount (the "Mortgage
Loan Purchase Price") equal to the net sale proceeds of the Class A Certificates
and the Mezzanine Certificates and (ii) will have delivered the NC Capital
Certificates to the Seller or its designee.
(b) The Purchaser or any assignee, transferee or designee of
the Purchaser shall be entitled to all scheduled payments of principal due after
the Cut-off Date, all other payments of principal due and collected after the
Cut-off Date, and all payments of interest on the Mortgage Loans allocable to
the period after the Cut-off Date. All scheduled payments of principal and
interest due on or before the Cut-off Date and collected after the Cut-off Date
shall belong to the Seller.
(c) Pursuant to the Pooling and Servicing Agreement, the
Purchaser will assign all of its right, title and interest in and to the
Mortgage Loans, together with its rights under this Agreement, to the Trustee
for the benefit of the Certificateholders.
SECTION 4. TRANSFER OF THE MORTGAGE LOANS.
(a) POSSESSION OF MORTGAGE FILES. The Seller does hereby sell,
and in connection therewith hereby assigns to the Purchaser, effective
as of the Closing Date, without recourse but subject to the terms of
this Agreement, all of its right, title and interest in, to and under
the Mortgage Loans, including the related Prepayment Charges. The
contents of each Mortgage File not delivered to the Purchaser or to any
assignee, transferee or designee of the Purchaser on or prior to the
Closing Date are and shall be held in trust by the Seller for the
benefit of the Purchaser or any assignee, transferee or designee of the
Purchaser. Upon the sale of the Mortgage Loans, the ownership of each
Mortgage Note, the related Mortgage and the other contents of the
related Mortgage File is vested in the Purchaser and the ownership of
all records and documents with respect to the related Mortgage Loan
prepared by or that come into the possession of the Seller on or after
the Closing Date shall immediately vest in the Purchaser and shall be
delivered immediately to the Purchaser or as otherwise directed by the
Purchaser.
(b) DELIVERY OF MORTGAGE LOAN DOCUMENTS. The Seller will, on
or prior to the Closing Date, deliver or cause to be delivered to the
Purchaser or any assignee, transferee or designee of the Purchaser each
of the following documents for each Mortgage Loan:
(i) the original Mortgage Note, endorsed in blank or in the
following form "Pay to the order of Deutsche Bank National Trust
Company, as Trustee under the applicable agreement, without recourse,"
with all prior and intervening endorsements showing a complete chain of
endorsement from the originator to the Person so endorsing to the
Trustee;
-2-
(ii) the original Mortgage with evidence of recording thereon,
and the original recorded power of attorney, if the Mortgage was
executed pursuant to a power of attorney, with evidence of recording
thereon;
(iii) an original Assignment in blank;
(iv) the original recorded Assignment or Assignments showing a
complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the
immediately preceding clause (iii);
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or, if the
original title policy has not been issued, the irrevocable commitment
to issue the same.
The Seller promptly shall (within sixty Business Days
following the later of the Closing Date and the date of the receipt by the
Seller of the recording information for a Mortgage but in no event later than
ninety days following the Closing Date) submit or cause to be submitted for
recording, at no expense to the Purchaser (or the Trust Fund or the Trustee
under the Pooling and Servicing Agreement), in the appropriate public office for
real property records, each Assignment referred to in clauses (b)(iii) and
(b)(iv) of this Section 4 and shall execute each original Assignment in the
following form: "Deutsche Bank National Trust Company, as Trustee under the
applicable agreement." In the event that any such Assignment is lost or returned
unrecorded because of a defect therein, the Seller promptly shall prepare a
substitute Assignment or cure such defect, as the case may be, and thereafter
cause each such Assignment to be duly recorded.
With respect to a maximum of approximately 2.0% of the
Mortgage Loans, by outstanding principal balance of the Mortgage Loans as of the
Cut-off Date, if any original Mortgage Note referred to in Section 4(b)(i) above
cannot be located, the obligations of the Seller to deliver such documents shall
be deemed to be satisfied upon delivery to the Purchaser of a photocopy of such
Mortgage Note, if available, with a lost note affidavit substantially in the
form of Exhibit I to the Pooling and Servicing Agreement. If any of the original
Mortgage Notes for which a lost note affidavit was delivered to the Purchaser is
subsequently located, such original Mortgage Note shall be delivered to the
Purchaser within three Business Days.
Notwithstanding the foregoing, however, for administrative
convenience and facilitation of servicing and to reduce closing costs, the
Assignments shall not be required to be submitted for recording (except with
respect to any Mortgage Loan located in Maryland, Florida, Hawaii or
Mississippi) unless such failure to record would result in a withdrawal or a
downgrading by any Rating Agency of the rating on any Class of Certificates
(which in the case of the Insured Certificates shall be without regard to the
Policy); PROVIDED, HOWEVER, each Assignment shall be submitted for recording by
the Seller in the manner described above, at no expense to the Purchaser, upon
the earliest to occur of: (i) reasonable direction by Holders of Certificates
entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Servicer
-3-
Event of Termination with respect to the applicable Servicer, (iii) the
occurrence of a bankruptcy, insolvency or foreclosure relating to the applicable
Servicer, (iv) the occurrence of a servicing transfer as described in Section
7.02 of the Pooling and Servicing Agreement, (v) with respect to any one
Assignment, the occurrence of a bankruptcy, insolvency or foreclosure relating
to the Mortgagor under the related Mortgage and (vi) any Mortgage Loan that is
90 days or more Delinquent. Upon (a) receipt of written notice that recording of
the Assignments is required pursuant to one or more of the conditions (excluding
condition (vi) above) set forth in the preceding sentence or (b) upon the
occurrence of condition (vi) in the preceding sentence, the Seller shall be
required to deliver such Assignments within 30 days following receipt of such
notice.
If any of the documents referred to in Sections 4(b)(ii),
(iii) or (iv) above has, as of the Closing Date, been submitted for recording
but either (x) has not been returned from the applicable public recording office
or (y) has been lost or such public recording office has retained the original
of such document, the obligations of the Seller to deliver such documents shall
be deemed to be satisfied upon (1) delivery to the Purchaser or its assignee,
transferee or designee of a copy of each such document certified by the
Originator in the case of (x) above or the applicable public recording office in
the case of (y) above to be a true and complete copy of the original that was
submitted for recording and (2) if such copy is certified by the Originator,
delivery to the Purchaser or its assignee, transferee or designee promptly upon
receipt thereof of either the original or a copy of such document certified by
the applicable public recording office to be a true and complete copy of the
original. Notice shall be provided to the Trustee and the Rating Agencies by the
Seller if delivery pursuant to clause (2) above will be made more than 180 days
after the Closing Date. If the original lender's title insurance policy was not
delivered pursuant to Section 4(b)(vi) above, the Seller shall deliver or cause
to be delivered to the Purchaser or its assignee, transferee or designee
promptly after receipt thereof, the original lender's title insurance policy.
The Seller shall deliver or cause to be delivered to the Purchaser or its
assignee, transferee or designee promptly upon receipt thereof any other
original documents constituting a part of a Mortgage File received with respect
to any Mortgage Loan, including, but not limited to, any original documents
evidencing an assumption or modification of any Mortgage Loan.
Each original document relating to a Mortgage Loan which is
not delivered to the Purchaser or its assignee, transferee or designee, if held
by the Seller, shall be so held for the benefit of the Purchaser, its assignee,
transferee or designee.
(c) ACCEPTANCE OF MORTGAGE LOANS. The documents delivered
pursuant to Section 4(b) hereof shall be reviewed by the Purchaser or any
assignee, transferee or designee of the Purchaser at any time before or after
the Closing Date (and with respect to each document permitted to be delivered
after the Closing Date, within seven days of its delivery) to ascertain that all
required documents have been executed and received and that such documents
relate to the Mortgage Loans identified on the Mortgage Loan Schedule.
(d) TRANSFER OF INTEREST IN AGREEMENT. The Purchaser has the
right to assign its interest under this Agreement, in whole or in part, to the
Trustee, as may be required to effect the purposes of the Pooling and Servicing
Agreement, without the consent of the Seller, and the assignee shall succeed to
the
-4-
rights and obligations hereunder of the Purchaser. Any expense reasonably
incurred by or on behalf of the Purchaser or the Trustee in connection with
enforcing any obligations of the Seller under this Agreement will be promptly
reimbursed by the Seller.
(e) EXAMINATION OF MORTGAGE FILES. Prior to the Closing Date,
the Seller shall either (i) deliver in escrow to the Purchaser, or to any
assignee, transferee or designee of the Purchaser for examination, the Mortgage
File pertaining to each Mortgage Loan or (ii) make such Mortgage Files available
to the Purchaser or to any assignee, transferee or designee of the Purchaser for
examination. Such examination may be made by the Purchaser or the Trustee, and
their respective designees, upon reasonable notice to the Seller during normal
business hours before the Closing Date and within 60 days after the Closing
Date. If any such person makes such examination prior to the Closing Date and
identifies any Mortgage Loans that do not conform to the requirements of the
Purchaser as described in this Agreement, such Mortgage Loans shall be deleted
from the Closing Schedule. The Purchaser may, at its option and without notice
to the Seller, purchase all or part of the Mortgage Loans without conducting any
partial or complete examination. The fact that the Purchaser or any person has
conducted or has failed to conduct any partial or complete examination of the
Mortgage Files shall not affect the rights of the Purchaser or any assignee,
transferee or designee of the Purchaser to demand repurchase or other relief as
provided herein or under the Pooling and Servicing Agreement.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER
The Seller hereby represents and warrants to the Purchaser, as
of the date hereof and as of the Closing Date, and covenants, that:
(1) The Seller is duly organized, validly existing and in good
standing as a corporation under the laws of the State of California with full
corporate power and authority to conduct its business as presently conducted by
it to the extent material to the consummation of the transactions contemplated
herein. The Seller has the full corporate power and authority to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser
and has the full corporate power and authority to execute and deliver, engage in
the transactions contemplated by, and perform and observe the terms and
conditions of this Agreement.
(2) The Seller 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
Purchaser, constitutes a legal, valid and binding obligation of the Seller,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or reorganization or by general
principles of equity.
(3) The execution, delivery and performance of this Agreement
by the Seller (x) does not conflict and will not conflict with, does not breach
and will not result in a breach of and does not constitute and will not
constitute a default (or an event, which with notice or lapse of time or both,
would constitute a default) under (A) any terms or provisions of the articles of
incorporation or by-laws of the Seller, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the
-5-
Seller is a party or by which the Seller or any of its property is bound or (C)
any law, rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Seller or any of
its property and (y) does not create or impose and will not result in the
creation or imposition of any lien, charge or encumbrance which would have a
material adverse effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans.
(4) No consent, approval, authorization or order of,
registration or filing with, or notice on behalf of the Seller to any
governmental authority or court is required, under federal laws or the laws of
the State of California, for the execution, delivery and performance by the
Seller of, or compliance by the Seller with, this Agreement or the consummation
by the Seller of any other transaction contemplated hereby and by the Pooling
and Servicing Agreement; provided, however, that the Seller makes no
representation or warranty regarding federal or state securities laws in
connection with the sale or distribution of the Certificates.
(5) This Agreement does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained herein not misleading. The written statements, reports and other
documents prepared and furnished or to be prepared and furnished by the Seller
pursuant to this Agreement or in connection with the transactions contemplated
hereby taken in the aggregate do not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements contained
therein not misleading.
(6) The Seller is not in violation of, and the execution and
delivery of this Agreement by the Seller and its performance and compliance with
the terms of this Agreement will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction over the Seller or its
assets, which violation might have consequences that would materially and
adversely affect the condition (financial or otherwise) or the operation of the
Seller or its assets or might have consequences that would materially and
adversely affect the performance of its obligations and duties hereunder.
(7) The Seller does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant contained in
this Agreement.
(8) Immediately prior to the sale of the Mortgage Loans to the
Purchaser as herein contemplated, the Seller will be the owner of the related
Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon
the payment to the Seller of the Mortgage Loan Purchase Price, in the event that
the Seller retains or has retained record title, the Seller shall retain such
record title to each Mortgage, each related Mortgage Note and the related
Mortgage Files with respect thereto in trust for the Purchaser as the owner
thereof from and after the date hereof.
(9) There are no actions or proceedings against, or
investigations known to it of, the Seller before any court, administrative or
other tribunal (A) that might prohibit its entering into this Agreement, (B)
seeking to prevent the sale of the Mortgage Loans by the Seller or the
consummation of
-6-
the transactions contemplated by this Agreement or (C) that might prohibit or
materially and adversely affect the performance by the Seller of its obligations
under, or validity or enforceability of, this Agreement.
(10) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by
the Seller are not subject to the bulk transfer or any similar statutory
provisions.
(11) Neither the Seller nor the Originator has dealt with any
broker, investment banker, agent or other person, except for the Purchaser or
any of its affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans (except that an entity that
previously financed the Seller's ownership of the Mortgage Loans may be entitled
to a fee to release its security interest in the Mortgage Loans, which fee shall
have been paid and which security interest shall have been released on or prior
to the Closing Date).
(12) There is no litigation, action, suit, proceeding or
investigation currently pending or, to the best of the Seller's knowledge
without independent investigation, threatened against the Seller or the
Originator that would reasonably be expected to adversely affect the transfer of
the Mortgage Loans, the issuance of the Certificates or the execution, delivery,
performance or enforceability of this Agreement, or that would result in a
material adverse change in the financial condition of the Seller.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE SELLER
RELATING TO THE MORTGAGE LOANS.
REPRESENTATIONS AND WARRANTIES AS TO INDIVIDUAL MORTGAGE
LOANS. The Seller hereby represents and warrants to the Purchaser that as to
each Mortgage Loan as of the Closing Date:
(1) The information set forth in the Mortgage Loan Schedule,
including the field concerning any related Prepayment Charge, is complete, true
and correct as of the Cut-off Date;
(2) [intentionally omitted]
(3) (a) All payments required to be made on or before the
first day of the month prior to the month of the Closing Date, with respect to
such Mortgage Loan under the terms of the Mortgage Note have been made; (b)
neither the Seller nor the Originator has advanced funds, or induced, solicited
or knowingly received any advance of funds from a party other than the owner of
the related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Note or Mortgage and (c) as of August 1, 2004,
the payment required under any Mortgage Loan will not and has not been 30 or
more days delinquent more than once during the last twelve months;
(4) There are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold payments,
including assessments payable in future installments or other outstanding
charges affecting the related Mortgaged Property;
-7-
(5) The terms of the Mortgage Note and the Mortgage have not
been impaired, waived, altered or modified in any respect, except by written
instruments, recorded in the applicable public recording office if necessary to
maintain the lien priority of the Mortgage and which has been delivered to the
Trustee; the substance of any such waiver, alteration or modification has been
approved by the title insurer, to the extent required by the related policy, and
is reflected on the Mortgage Loan Schedule. No instrument of waiver, alteration
or modification has been executed by the Seller or the Originator or any other
person in the chain of title from the Originator to the Seller to the Purchaser,
and no Mortgagor has been released, in whole or in part, except in connection
with an assumption agreement approved by the title insurer, to the extent
required by the policy, and the terms of which are reflected in the Mortgage
Loan Schedule and which assumption agreement is part of the Mortgage Loan file
delivered to the Trustee;
(6) The Mortgage Note and the Mortgage are not subject to any
right of rescission, set-off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto. As of the Closing Date, no Mortgager was a debtor in any state
or federal bankruptcy or insolvency proceeding at the time the Mortgage Loan was
originated;
(7) All buildings or other improvements upon the Mortgaged
Property are insured by a generally acceptable insurer against loss by fire,
hazards of extended coverage and such other hazards as are customary in the area
where the Mortgaged Property is located, pursuant to insurance policies
conforming to the requirements of the Pooling and Servicing Agreement. All such
insurance policies contain a standard mortgagee clause naming the Originator,
its successors and assigns as mortgagee and all premiums thereon have been paid.
If upon origination of the Mortgage Loan, the Mortgaged Property was in an area
identified on a Flood Hazard Map or Flood Insurance Rate Map issued by the
Federal Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect which policy conforms to the requirements of Xxxxxx Xxx and Xxxxxxx
Mac. The Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to
do so, authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor. The hazard insurance policy is the valid and binding obligation of
the insurer, is in full force and effect, and will be in full force and effect
and inure to the benefit of the Trustee upon the consummation of the
transactions contemplated by this Agreement. The Seller has not engaged in, and
has no knowledge of the Mortgagor's having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of the endorsement
provided for herein, or the validity and binding effect of either, including,
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(8) Any and all requirements of any federal, state or local
law including, without limitation, all applicable predatory and abusive lending
laws, usury, truth in lending, real estate settlement
-8-
procedures, consumer credit protection, equal credit opportunity or disclosure
laws applicable to the origination and servicing of the Mortgage Loan,
including, without limitation, any provisions therein relating to Prepayment
Charges have been complied with. Any and all statements or acknowledgments
required to be made by the Seller relating to such requirements are and will
remain in the Mortgage File;
(9) The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole or in part, nor has
any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(10) The Mortgage is a valid, existing and enforceable first
or second lien on the Mortgaged Property, including all improvements on the
Mortgaged Property subject only to (a) the lien of current real property taxes
and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record as
of the date of recording being acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and which do not adversely
affect the appraised value of the Mortgaged Property, (c) other matters to which
like properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property and (d) the
first lien on the Mortgaged Property, in the case of the Mortgages that are
second liens. Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, existing and enforceable first or second lien and first or
second priority security interest, as applicable, on the property described
therein and the Seller had full right to contribute and assign the same to the
Purchaser. The Mortgaged Property was not, as of the date of origination of the
Mortgage Loan, subject to a mortgage, deed of trust, deed to secure debt or
other security instrument creating a lien subordinate to the lien of the
Mortgage;
(11) The Mortgage Note and the related Mortgage and any other
agreement executed and delivered by a Mortgagor in connection with a Mortgage
Loan are genuine and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms;
(12) All parties to the Mortgage Note and the Mortgage had
legal capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been
duly and properly executed by such parties. The Mortgagor is a natural person
who is a party to the Mortgage Note and the Mortgage is in an individual
capacity or family trust that is guaranteed by a natural person;
(13) The proceeds of the Mortgage Loan have been fully
disbursed to or for the account of the Mortgagor and there is no obligation for
the Mortgagee to advance additional funds thereunder and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or
-9-
closing the Mortgage Loan and the recording of the Mortgage have been paid, and
the Mortgagor is not entitled to any refund of any amounts paid or due to the
Mortgagee pursuant to the Mortgage Note or Mortgage;
(14) As of the Closing Date and prior to the sale of the
Mortgage Loan to the Purchaser, the Seller was the sole legal, beneficial and
equitable owner of the Mortgage Note and the Mortgage and has full right to
transfer and sell the Mortgage Loan to the Purchaser free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest;
(15) All parties which have had any interest in the Mortgage
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) in compliance
with any and all applicable "doing business" and licensing requirements of the
laws of the state wherein the Mortgaged Property is located;
(16) The Mortgage Loan is covered by an ALTA lender's title
insurance policy, and with respect to each adjustable-rate Mortgage Loan, an
adjustable rate mortgage endorsement in an amount at least equal to the balance
of the Mortgage Loan as of the Cut-off Date, such endorsement substantially in
the form of ALTA Form 6.0 or 6.1, acceptable to Xxxxxx Xxx or Xxxxxxx Mac,
issued by a title insurer acceptable to Xxxxxx Mae and Xxxxxxx Mac and qualified
to do business in the jurisdiction where the Mortgaged Property is located,
insuring (subject to the exceptions contained in (x)(a) and (b) above) the
Originator, its successors and assigns as to the first or second priority lien
of the Mortgage in the original principal amount of the Mortgage Loan and
against any loss by reason of the invalidity or unenforceability of the lien
resulting from the provisions of the Mortgage providing for adjustment in the
Mortgage Rate and monthly payment in case of a Group III Mortgage Loan.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress to and from the Mortgaged Property, and against encroachments by or
upon the Mortgaged Property or any interest therein. The Originator is the sole
insured of such lender's title insurance policy, and such lender's title
insurance policy is valid and remains in full force and effect and will be in
full force and effect upon the consummation of the transactions contemplated by
this Agreement. No claims have been made under such lender's title insurance
policy, and no prior holder of the related Mortgage, including the Originator,
the Seller, has done, by act or omission, anything which would impair the
coverage of such lender's title insurance policy including, without limitation,
no unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Purchaser or the Seller;
(17) Other than as specified in paragraph (3) above, if
applicable, there is no default, breach, violation or event of acceleration
existing under the Mortgage or the Mortgage Note and no event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration, and
neither the Originator nor the Seller has waived any default, breach, violation
or event of acceleration;
-10-
(18) There are no mechanics' or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding that
under law could give rise to such lien) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or coordinate with, the lien of the
related Mortgage;
(19) All improvements which were considered in determining the
Value of the related Mortgaged Property lay wholly within the boundaries and
building restriction lines of the Mortgaged Property, and no improvements on
adjoining properties encroach upon the Mortgaged Property. As of the date of
origination, there are no improvements located on or being part of the Mortgaged
Property in violation of any applicable zoning law or regulation. Each appraisal
has been performed in accordance with the provisions of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989;
(20) The Mortgage Loan was (i) originated by the Originator or
by a savings and loan association, a savings bank, a commercial bank or similar
banking institution which is supervised and examined by a federal or state
authority, or by a mortgagee approved as such by the Secretary of HUD or (ii)
acquired by the Originator directly through loan brokers or correspondents such
that (a) the Mortgage Loan was originated in conformity with the Originator's
underwriting guidelines, (b) the Originator approved the Mortgage Loan prior to
funding and (c) the Originator provided the funds used to originate the Mortgage
Loan and acquired the Mortgage Loan on the date of origination thereof. All
Mortgage Loans have Due Dates on the first day of each month except as specified
on the Mortgage Loan Schedule. Each Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to adjustable rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Rate on each interest rate adjustment date, with
interest calculated and payable in arrears and is not calculated on a simple
interest basis. The monthly principal payments on each Mortgage Loan is
sufficient to amortize the Mortgage Loan fully by the stated maturity date, over
an original term of not more than thirty years from commencement of
amortization. There is no negative amortization allowed in the terms of any
Mortgage Note. None of the Mortgage Loans allows for negative amortization or
the conversion of the interest rate thereon from an adjustable rate to a fixed
rate or from a fixed rate to an adjustable rate.;
(21) Principal payments on the Mortgage Loan commenced no more
than two months after the proceeds of the Mortgage Loan were disbursed. The
Mortgage Loan bears interest at the Mortgage Rate. With respect to the Group III
Mortgage Loans, the Mortgage Note is payable on the first day of each month in
Monthly Payments which are changed on each Adjustment Date to an amount which
will amortize the Stated Principal Balance of the Mortgage Loan over its
remaining term at the Mortgage Rate. Interest on the Mortgage Loan is calculated
on the basis of a 360-day year consisting of twelve 30-day months. The Mortgage
Note does not permit negative amortization. No Group III Mortgage Loan permits
the Mortgagor to convert the Mortgage Rate thereon to a fixed Mortgage Rate. All
Mortgage Rate adjustments have been made in strict compliance with state and
federal law and the terms of the related Mortgage Note. If, pursuant to the
terms of the Mortgage Note, another index was selected for determining the
Mortgage Rate, the same index was used with respect to each Mortgage Note which
required a new index to be selected, and such selection did not conflict with
the terms of the related Mortgage Note. The Seller or an affiliate executed and
delivered any and all notices required under
-11-
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Rate and the monthly payment adjustments. Any interest required to
be paid pursuant to state, federal and local law has been properly paid and
credited;
(22) The origination and collection practices used by the
Originator with respect to each Mortgage Note and Mortgage have been in all
respects legal, proper, prudent and customary in the mortgage origination and
servicing industry. The Mortgage Loan has been serviced in accordance with the
terms of the Mortgage Note. With respect to escrow deposits and Escrow Payments,
if any, all such payments are in the possession of, or under the control of, the
related Servicer and there exist no deficiencies in connection therewith for
which customary arrangements for repayment thereof have not been made. No escrow
deposits or Escrow Payments or other charges or payments due the related
Servicer have been capitalized under any Mortgage or the related Mortgage Note;
(23) The Mortgaged Property is free of damage, waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty so as
to affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended and each Mortgaged
Property is in good repair. There have not been any condemnation proceedings
with respect to the Mortgaged Property and the Seller has no knowledge of any
such proceedings in the future. There is no proceeding pending for the total or
partial condemnation thereof;
(24) The Mortgage and related Mortgage Note contain customary
and enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property of
the benefits of the security provided thereby, including, (a) in the case of a
Mortgage designated as a deed of trust, by trustee's sale and (b) otherwise by
judicial foreclosure. Since the date of origination of the Mortgage Loan, the
Mortgaged Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for protection under
applicable bankruptcy laws. There is no homestead or other exemption available
to the Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage. To the best
of the Seller's knowledge, the Mortgagor has not notified the Originator of any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act and, to the best of the Seller's knowledge, no such request has been
made or allowance granted.
(25) The related Mortgaged Property is not a leasehold estate
or, if such Mortgaged Property is a leasehold estate, the remaining term of such
lease is at least ten (10) years greater than the remaining term of the related
Mortgage Note;
(26) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage referred to in (10) above;
(27) The Mortgage File contains an appraisal of the related
Mortgaged Property made and signed, prior to the approval of the Mortgage Loan
application, by a qualified appraiser, approved by the Originator or the Seller,
who had no interest, direct or indirect in the Mortgaged Property or in any loan
-12-
made on the security thereof, whose compensation is not affected by the approval
or disapproval of the Mortgage Loan and who met the minimum qualifications of
Xxxxxx Xxx and Xxxxxxx Mac;
(28) In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees or
expenses are or will become payable by the Purchaser to the trustee under the
deed of trust, except in connection with a trustee's sale after default by the
Mortgagor;
(29) No Mortgage Loan contains provisions pursuant to which
Monthly Payments are (a) paid or partially paid with funds deposited in any
separate account established by the Originator, the Seller, the Mortgagor, or
anyone on behalf of the Mortgagor, (b) paid by any source other than the
Mortgagor or (c) contains any other similar provisions which may constitute a
"buydown" provision. The Mortgage Loans are not graduated payment mortgage loans
and the Mortgage Loans do not have shared appreciation or other contingent
interest features;
(30) The Mortgagor has executed a statement to the effect that
the Mortgagor has received all disclosure materials required by applicable law
with respect to the making of mortgage loans; and if the Mortgage Loan is a
Refinanced Mortgage Loan, the Mortgagor has received all disclosure and
rescission materials required by applicable law with respect to the making of a
Refinanced Mortgage Loan, and evidence of such receipt is and will remain in the
Mortgage File;
(31) No Mortgage Loan was made in connection with (a) the
construction or rehabilitation of a Mortgaged Property or (b) facilitating the
trade-in or exchange of a Mortgaged Property;
(32) All Mortgage Loans have a credit score and no Mortgage
Loan has a credit score below 500;
(33) The Mortgaged Property is lawfully occupied under
applicable law; all inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged Property and,
with respect to the use and occupancy of the same, including but not limited to
certificates of occupancy, have been made or obtained from the appropriate
authorities;
(34) No error, omission, misrepresentation, negligence, fraud
or similar occurrence with respect to a Mortgage Loan has taken place on the
part of any person, including, without limitation, the Mortgagor, any appraiser,
any builder or developer, or any other party involved in the origination of the
Mortgage Loan or in the application of any insurance in relation to such
Mortgage Loan;
(35) Each Assignment is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Mortgaged Property
is located;
(36) Any principal advances made to the Mortgagor prior to the
Cut-off Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of the Mortgage
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securing the consolidated principal amount is expressly insured as having first
or second lien priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by other title evidence
acceptable to Xxxxxx Mae and Xxxxxxx Mac. The consolidated principal amount does
not exceed the original principal amount of the Mortgage Loan;
(37) No Mortgage Loan has a balloon payment feature;
(38) If the Residential Dwelling on the Mortgaged Property is
a condominium unit or a unit in a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project meets Xxxxxx Mae's eligibility requirements;
(39) Except with respect to approximately 7.43% of the Group I
Mortgage Loans, approximately 7.34% of the Group II Mortgage Loans,
approximately 34.31% of the Group III-A Mortgage Loans and approximately 32.47%
of the Group III-B Mortgage Loans (by aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date), neither the Originator nor any affiliate
of the Originator has made a mortgage on any Mortgaged Property other than the
Mortgage Loan;
(40) Each Group I Mortgage Loan had a principal balance at
origination that conformed to Xxxxxx Mae's then loan limits;
(41) The Mortgage Loan was not intentionally selected in a
manner intended to adversely affect the interest of the Purchaser;
(42) Each Group I Mortgage Loan is secured by a first lien on
the related Mortgaged Property;
(43) The Mortgaged Property consists of a parcel of real
property of not more than ten acres with a one family residence erected thereon,
or a two to four-family dwelling, or an individual condominium unit in a
low-rise or high-rise condominium project, or an individual unit in a planned
unit development. The Mortgaged Property is improved with a Residential
Dwelling. Without limiting the foregoing, the Mortgaged Property does not
consist of any of the following property types: (a) co-operative units, (b) log
homes, (c) earthen homes, (d) underground homes, (e) mobile homes and (f)
manufactured homes (as defined in the Xxxxxx Mae Originator-Servicer's Guide),
except when the appraisal indicates that the home is of comparable construction
to a stick or beam construction home, is readily marketable, has been
permanently affixed to the site and is not in a mobile home "park." The
Mortgaged Property is either a fee simple estate or a long-term residential
lease. If the Mortgage Loan is secured by a long-term residential lease, unless
otherwise specifically disclosed in the Mortgage Loan Schedule, (A) the terms of
such lease expressly permit the mortgaging of the leasehold estate, the
assignment of the lease without the lessor's consent (or the lessor's consent
has been obtained and such consent is the Mortgage File) and the acquisition by
the holder of the Mortgage of the rights of the lessee upon foreclosure or
assignment in lieu of foreclosure or provide the holder of the Mortgage with
substantially similar protection; (B) the terms of such lease do not (x) allow
the termination thereof upon the lessee's default without the holder of the
Mortgage being entitled to receive written notice of, and opportunity to cure,
such default or (y) prohibit
-14-
the holder of the Mortgage from being insured under the hazard insurance policy
relating to the Mortgaged Property; (C) the original term of such lease is not
less than 15 years; (D) the term of such lease does not terminate earlier than
ten years after the maturity date of the Mortgage Note; and (E) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates for
residential properties is an accepted practice;
(44) At the time of origination, the Loan-To-Value Ratio of
the Mortgage Loan was not greater than 100.00%;
(45) The Mortgage, and if required by applicable law the
related Mortgage Note, contains a provision for the acceleration of the payment
of the unpaid Stated Principal Balance of the Mortgage Loan in the event that
the Mortgaged Property is sold or transferred without the prior written consent
of the Mortgagee, at the option of the Mortgagee;
(46) The Mortgage Loan either contains a customary due-on-sale
clause or may be assumed by a creditworthy purchaser of the related Mortgaged
Property;
(47) As of any Adjustment Date for any Group III Mortgage
Loan, the Index applicable to the determination of the Mortgage Rate on such
Mortgage Loan will be the average of the interbank offered rates for six-month
or one-month United States dollar deposits in the London market, generally as
published in THE WALL STREET JOURNAL and as most recently available as of either
(i) the first business day 45 days prior to such Adjustment Date or (ii) the
first business day of the month preceding the month of such Adjustment Date, as
specified in the related Mortgage Note;
(48) Each Mortgage Loan is a "qualified mortgage loan" within
the meaning of the Section 860G(a)(3) of the Code;
(49) No Mortgage Loan has a mortgage rate of greater than 13%;
(50) The Originator is a HUD approved mortgagee pursuant to
Section 203 and Section 211 of the National Housing Act. No event has occurred,
including but not limited to a change in insurance coverage, that would make the
Originator unable to comply with HUD eligibility requirements or that would
require notification to HUD;
(51) No Mortgage Loan is covered by the Home Ownership and
Equity Protection Act of 1994 ("HOEPA") and no Mortgage Loan is in violation of
any comparable state or local law;
(52) No Mortgage Loan is a "High Cost Home Loan" as defined in
the Georgia Fair Lending Act, as amended (the "Georgia Act"). No Mortgage Loan
subject to the Georgia Act and secured by owner occupied real property or an
owner occupied manufactured home located in the State of Georgia was originated
(or modified) on or after October 1, 2002 through and including March 6, 2003;
-15-
(53) (a) No Mortgage Loan is a "high cost home," "covered,"
(excluding home loans defined as "covered home loans" pursuant to clause (1) of
the definition of that term in the New Jersey Home Ownership Security Act of
2002), "high risk home" or "predatory" loan under any other applicable state,
federal or local law (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);
(54) No proceeds from any Mortgage Loan were used to finance
single-premium credit insurance policies;
(55) No Mortgage Loan originated on or after October 1, 2002
will impose a Prepayment Charge for a term in excess of three years. Any
Mortgage Loans originated prior to such date will not impose Prepayment Charges
in excess of five years;
(56) Each Mortgage Loan at the time it was made complied in
all material respects with applicable local, state, and federal laws, including,
but not limited to, all applicable predatory and abusive lending laws;
(57) Each Prepayment Charge is enforceable and was originated
in compliance with all applicable federal, state and local laws (except to the
extent that the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws affecting creditor's rights
generally or the collectability thereof may be limited due to acceleration in
connection with a foreclosure);
(58) No Mortgage Loan is a high cost loan or a covered loan,
as applicable (as such terms are defined in Standard & Poor's LEVELS Version 5.6
Glossary Revised, Appendix E;
(59) Each Group I Mortgage Loan is in compliance with the
anti-predatory lending eligibility standards for purchase requirements of Xxxxxx
Mae's Selling Guide;
(60) No borrower was encouraged or required to select a Group
I Mortgage Loan product offered by the Originator which is a higher cost product
designed for less creditworthy borrowers, unless at the time of the Group I
Mortgage Loan's origination, such borrower did not qualify taking into account
credit history and debt to income ratios for a lower cost credit product then
offered by the Originator or any affiliate of the Originator. If, at the time of
loan application, the borrower may have qualified for a for a lower cost credit
product then offered by any mortgage lending affiliate of the Originator, the
Originator referred the borrower's application to such affiliate for
underwriting consideration;
(61) The methodology used in underwriting the extension of
credit for each Group I Mortgage Loan employs objective mathematical principles
which relate the borrower's income, assets and liabilities to the proposed
payment and such underwriting methodology does not rely on the extent of the
borrower's equity in the collateral as the principal determining factor in
approving such credit extension.
-16-
Such underwriting methodology confirmed that at the time of origination
(application/approval) the borrower had a reasonable ability to make timely
payments on the Group I Mortgage Loan;
(62) With respect to any Group I Mortgage Loan that contains a
provision permitting imposition of a premium upon a prepayment prior to
maturity: (i) prior to the loan's origination, the borrower agreed to such
premium in exchange for a monetary benefit, including but not limited to a rate
or fee reduction, (ii) prior to the loan's origination, the borrower was offered
the option of obtaining a mortgage loan that did not require payment of such a
premium, (iii) the prepayment premium is disclosed to the borrower in the loan
documents pursuant to applicable state and federal law, and (iv) notwithstanding
any state or federal law to the contrary, neither Servicer shall impose such
prepayment premium in any instance when the mortgage debt is accelerated as the
result of the borrower's default in making the loan payments;
(63) No borrower was required to purchase any credit life,
disability, accident or health insurance product as a condition of obtaining the
extension of credit. No borrower obtained a prepaid single premium credit life,
disability, accident or health insurance policy in connection with the
origination of the Group I Mortgage Loan. No proceeds from any Group I Mortgage
Loan were used to purchase single premium credit insurance policies as part of
the origination of, or as a condition to closing, such Group I Mortgage Loan;
(64) All points and fees related to each Group I Mortgage Loan
were disclosed in writing to the borrower in accordance with applicable state
and federal law and regulation. Except in the case of a Group I Mortgage Loan in
an original principal amount of less than $60,000 which would have resulted in
an unprofitable origination, no borrower was charged "points and fees" (whether
or not financed) in an amount greater than 5% of the principal amount of such
loan, such 5% limitation is calculated in accordance with Xxxxxx Mae's
anti-predatory lending requirements as set forth in the Xxxxxx Mae Selling
Guide; and
(65) All fees and charges (including finance charges) and
whether or not financed, assessed, collected or to be collected in connection
with the origination and servicing of each Group I Mortgage Loan has been
disclosed in writing to the borrower in accordance with applicable state and
federal law and regulation.
(66) Type of Mortgaged Property. As of the date of
origination, no portion of the Mortgaged Property was used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used for
commercial purposes as long as the Mortgaged Property has not been altered for
commercial purposes and is not storing any chemicals or raw materials other than
those commonly used for homeowner repair, maintenance and/or household purposes.
With respect to any Mortgage Loan secured by a Mortgaged Property improved by
manufactured housing, (i) such Mortgage Loan conforms with the applicable Xxxxxx
Xxx or Xxxxxxx Mac requirements regarding mortgage loans related to manufactured
dwellings, (ii) the related manufactured housing unit is permanently affixed to
the land, (iii) the related manufactured housing unit and the related land are
subject to a Mortgage
-17-
properly filed in the appropriate public recording office and naming the
Purchaser as mortgagee, and (iv) the applicable laws of the jurisdiction in
which the related Mortgaged Property is located will deem the manufactured
dwelling located on such Mortgaged Property to be a part of the real property on
which such dwelling is located;
(67) NO VIOLATION OF ENVIRONMENTAL LAWS. There is no pending
action or proceeding directly involving the Mortgaged Property in which
compliance with any environmental law, rule or regulation is an issue; there is
no violation of any environmental law, rule or regulation with respect to the
Mortgaged Property; and nothing further remains to be done to satisfy in full
all requirements of each such law, rule or regulation constituting a
prerequisite to use and enjoyment of said property;
(68) NO DEFENSE TO INSURANCE COVERAGE. No action has been
taken or failed to be taken, no event has occurred and no state of facts exists
or has existed on or prior to the Closing Date (whether or not known to the
Seller on or prior to such date) which has resulted or will result in an
exclusion from, denial of, or defense to coverage under any primary mortgage
insurance (including, without limitation, any exclusions, denials or defenses
which would limit or reduce the availability of the timely payment of the full
amount of the loss otherwise due thereunder to the insured) whether arising out
of actions, representations, errors, omissions, negligence, or fraud of the
Seller, the related Mortgagor or any party involved in the application for such
coverage, including the appraisal, plans and specifications and other exhibits
or documents submitted therewith to the insurer under such insurance policy, or
for any other reason under such coverage, but not including the failure of such
insurer to pay by reason of such insurer's breach of such insurance policy or
such insurer's financial inability to pay;
(68) CONFORMANCE WITH AGENCY AND UNDERWRITING STANDARDS. The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines.
The Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx
Mae and neither the Seller nor any affiliate has made any representations to a
Mortgagor that are inconsistent with the mortgage instruments used;
(69) CONVERSION TO FIXED INTEREST RATE. With respect to each
adjustable rate Mortgage Loan, the Mortgage Loan is not a convertible Mortgage
Loan;
SECTION 7. REPURCHASE OBLIGATION FOR DEFECTIVE DOCUMENTATION
AND FOR BREACH OF REPRESENTATION AND WARRANTY.
(a) The representations and warranties contained in Section 6
shall not be impaired by any review and examination of loan files or other
documents evidencing or relating to the Mortgage Loans or any failure on the
part of the Purchaser to review or examine such documents and shall inure to the
benefit of any assignee, transferee or designee of the Purchaser, including the
Trustee for the benefit of holders of the Certificates and the Certificate
Insurer. With respect to the representations and warranties contained herein as
to which the Seller has no knowledge, if it is discovered that the substance of
any such representation and warranty was inaccurate as of the date such
representation and warranty was made or deemed to be made, and such inaccuracy
materially and adversely affects the value of the related Mortgage
-18-
Loan or the interest therein of the Purchaser or the Purchaser's assignee,
transferee or designee, then notwithstanding the lack of knowledge by the Seller
with respect to the substance of such representation and warranty being
inaccurate at the time the representation and warranty was made, the Seller
shall take such action described in the following paragraph in respect of such
Mortgage Loan.
Upon discovery by the Purchaser or any assignee, transferee or
designee of the Purchaser of any materially defective document in, or that a
document was not transferred by the Seller (as listed on the Trustee's
preliminary exception report) as part of any Mortgage File, or of a breach of
any of the representations and warranties contained in Section 6 that materially
and adversely affects the value of any Mortgage Loan or the interest therein of
the Certificateholders or the Certificate Insurer, the Purchaser or the
Purchaser's assignee, transferee or designee, the party discovering such breach
shall give prompt written notice to the Seller. Within sixty (60) days of its
discovery or its receipt of notice of any such missing documentation that was
not transferred by the Seller as described above, or of materially defective
documentation, or of any such breach of a representation and warranty, the
Seller promptly shall deliver such missing document or cure such defect or
breach in all material respects or, in the event the Seller cannot deliver such
missing document or cannot cure such defect or breach, the Seller shall, within
ninety (90) days of its discovery or receipt of notice, either (i) repurchase
the affected Mortgage Loan at the Purchase Price (as such term is defined in the
Pooling and Servicing Agreement) or (ii) pursuant to the provisions of the
Pooling and Servicing Agreement, cause the removal of such Mortgage Loan from
the Trust Fund and substitute one or more Qualified Substitute Mortgage Loans.
The Seller shall amend the Closing Schedule to reflect the withdrawal of such
Mortgage Loan from the terms of this Agreement and the Pooling and Servicing
Agreement. The Seller shall deliver to the Purchaser such amended Closing
Schedule and shall deliver such other documents as are required by this
Agreement or the Pooling and Servicing Agreement within five (5) days of any
such amendment. Any repurchase pursuant to this Section 7(a) shall be
accomplished by transfer to an account designated by the Purchaser of the amount
of the Purchase Price (as such term is defined in the Pooling and Servicing
Agreement) in accordance with Section 2.03 of the Pooling and Servicing
Agreement. Any repurchase required by this Section 7(a) shall be made in a
manner consistent with Section 2.03 of the Pooling and Servicing Agreement.
(b) It is understood and agreed that the obligations of the
Seller set forth in this Section 7 to cure or repurchase a defective Mortgage
Loan constitute the sole remedies of the Purchaser against the Seller respecting
a missing document or a breach of the representations and warranties contained
in Section 6.
SECTION 8. CLOSING; PAYMENT FOR THE MORTGAGE LOANS. The
closing of the purchase and sale of the Mortgage Loans shall be held at the New
York City office of Xxxxxxx Xxxxxxxx & Xxxx LLP at 10:00 a.m. New York City time
on the Closing Date.
The closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the
Seller under this Agreement shall be true and correct
in all material respects as of the date as of which
they are
-19-
made and no event shall have occurred which, with
notice or the passage of time, would constitute a
default under this Agreement;
(b) The Purchaser shall have received, or the attorneys
of the Purchaser shall have received in escrow (to be
released from escrow at the time of closing), all
Closing Documents as specified in Section 9 of this
Agreement, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered or caused to be
delivered and released to the Purchaser or to its
designee, all documents (including without
limitation, the Mortgage Loans) required to be so
delivered by the Purchaser pursuant to Section 2.01
of the Pooling and Servicing Agreement; and
(e) All other terms and conditions of this Agreement and
the Pooling and Servicing Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall
deliver or cause to be delivered to the Seller on the Closing Date, against
delivery and release by the Seller to the Trustee of all documents required
pursuant to the Pooling and Servicing Agreement, the consideration for the
Mortgage Loans as specified in Section 3 of this Agreement, by delivery to the
Seller of the Mortgage Loan Purchase Price in immediately available funds and
the NC Capital Certificates.
SECTION 9. CLOSING DOCUMENTS. Without limiting the generality
of Section 8 hereof, the closing shall be subject to delivery of each of the
following documents:
(a) An Officers' Certificate of the Seller, dated the
Closing Date, in form satisfactory to and upon which
the Purchaser, Bear, Xxxxxxx & Co. Inc.
"Representative") and the Certificate Insurer may
rely, and attached thereto copies of the certificate
of incorporation, by-laws and certificate of good
standing of the Seller under the laws of California;
(b) An Opinion of Counsel of the Seller, dated the
Closing Date, in form satisfactory to and addressed
to the Purchaser, the Certificate Insurer and the
Representative;
(c) Such opinions of counsel as the Rating Agencies, the
Certificate Insurer or the Trustee may request in
connection with the sale of the Mortgage Loans by the
Seller to the Purchaser or the Seller's execution and
delivery of, or performance under, this Agreement;
(d) An Officers' Certificate of each Servicer, dated the
Closing Date, in form satisfactory to and upon which
the Purchaser, the Certificate Insurer and the
-20-
Representative may rely, and attached thereto copies
of the certificate of incorporation, by-laws and
certificate of good standing of each Servicer;
(e) An Officers' Certificate of each Servicer, dated the
Closing Date, in form satisfactory to and upon which
the Purchaser, the Certificate Insurer and the
Representative may rely, stating that on the Closing
Date the representations and warranties of the
Servicer contained in the Pooling and Servicing
Agreement will be true and correct and no event has
occurred with respect to either Servicer that would
constitute an Event of Default thereunder;
(f) An Opinion of Counsel of each Servicer, dated the
Closing Date, in form satisfactory to and addressed
to the Purchaser, the Certificate Insurer and the
Representative;
(g) (i) A letter from KPMG L.L.P., certified public
accountants, to the effect that they have performed
certain specified procedures as a result of which
they determined that certain information of an
accounting, financial or statistical nature set forth
in the Prospectus Supplement relating to the Offered
Certificates contained under the captions
"Summary--The Mortgage Loans," "Risk Factors," (to
the extent of information concerning the Mortgage
Loans contained therein) and "The Mortgage Pool"
agrees with the records of the Seller and the
information contained under the caption "The
Originator" agrees with the records of the
Originator; and
(h) Such further information, certificates, opinions and
documents as the Purchaser or the Representative may
reasonably request.
SECTION 10. COSTS. The Seller shall pay (or shall reimburse
the Purchaser or any other Person to the extent that the Purchaser or such other
Person shall pay) all costs and expenses incurred in connection with the
transfer and delivery of the Mortgage Loans, including without limitation,
recording fees, fees for title policy endorsements and continuations and the
fees for recording Assignments, the fees and expenses of the Seller's
accountants and attorneys, the costs and expenses incurred in connection with
producing the Servicers' or any Subservicer's loan loss, foreclosure and
delinquency experience, and the costs and expenses incurred in connection with
obtaining the documents referred to in Sections 9, the costs and expenses of
printing (or otherwise reproducing) and delivering this Agreement, the Pooling
and Servicing Agreement, the Certificates, the prospectus and Prospectus
Supplement, and any private placement memorandum relating to the Certificates
and other related documents, the initial fees, costs and expenses of the
Trustee, the fees and expenses of the Purchaser's counsel in connection with the
preparation of all documents relating to the securitization of the Mortgage
Loans, the filing fee charged by the Securities and Exchange Commission for
registration of the Certificates and the fees charged by any rating agency to
rate the Certificates. All other costs and expenses in connection with the
transactions contemplated hereunder shall be borne by the party incurring such
expense.
SECTION 11. [RESERVED].
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SECTION 12. INDEMNIFICATION. The Seller shall indemnify and
hold harmless each of (i) the Purchaser, (ii) the Underwriter, (iii) the Person,
if any, to which the Purchaser assigns its rights in and to a Mortgage Loan and
each of their respective successors and assigns and (iv) each person, if any,
who controls the Purchaser within the meaning of Section 15 of the Securities
Act of 1933, as amended (the "1933 Act") ((i) through (iv) collectively, the
"Indemnified Party") against any and all losses, claims, expenses, damages or
liabilities to which the Indemnified Party may become subject, under the 1933
Act or otherwise, insofar as such losses, claims, expenses, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (a)
any untrue statement or alleged untrue statement of any material fact contained
in the Prospectus Supplement or any private placement memorandum relating to the
offering by the Purchaser or an affiliate thereof, of the Class CE Certificates
or the Class P Certificates, or the omission or the alleged omission to state
therein the material fact necessary in order to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with (i) information furnished in writing to
the Purchaser or any of its affiliates by the Seller or any of its affiliates
specifically for use therein, which shall include, with respect to the
Prospectus Supplement, the information set forth under the captions
"Summary--The Mortgage Loans," "Risk Factors" (to the extent of information
concerning the Mortgage Loans contained therein), "The Mortgage Pool" and, with
respect to any private placement memorandum, any information of a comparable
nature, or (ii) the data files containing information with respect to the
Mortgage Loans as transmitted by modem to the Purchaser by the Seller or any of
its affiliates (as such transmitted information may have been amended in writing
by the Seller or any of its affiliates with the written consent of the Purchaser
subsequent to such transmission), (b) any representation, warranty or covenant
made by the Seller or any affiliate of the Seller herein or in the Pooling and
Servicing Agreement, on which the Purchaser has relied, being, or alleged to be,
untrue or incorrect or (c) any updated collateral information provided by any
Underwriter to a purchaser of the Certificates derived from the data contained
in clause (ii) and the Remittance Report or a current collateral tape obtained
from the Seller or an affiliate of the Seller, including the current Stated
Principal Balances of the Mortgage Loans; provided, however, that to the extent
that any such losses, claims, expenses, damages or liabilities to which the
Indemnified Party may become subject arise out of or are based upon both (1)
statements, omissions, representations, warranties or covenants of the Seller
described in clause (a), (b) or (c) above and (2) any other factual basis, the
Seller shall indemnify and hold harmless the Indemnified Party only to the
extent that the losses, claims, expenses, damages, or liabilities of the person
or persons asserting the claim are determined to rise from or be based upon
matters set forth in clause (1) above and do not result from the gross
negligence or willful misconduct of such Indemnified Party. This indemnity shall
be in addition to any liability that the Seller may otherwise have.
SECTION 13. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST.
The sale and delivery on the Closing Date of the Mortgage Loans described on the
Mortgage Loan Schedule in accordance with the terms and conditions of this
Agreement is mandatory. It is specifically understood and agreed that each
Mortgage Loan is unique and identifiable on the date hereof and that an award of
money damages would be insufficient to compensate the Purchaser for the losses
and damages incurred by the Purchaser in the event of the Seller's failure to
deliver the Mortgage Loans on or before the Closing Date. The Seller hereby
grants to the Purchaser a lien on and a continuing security interest in the
Seller's interest in each Mortgage Loan and each document and instrument
evidencing each such Mortgage Loan to secure the performance
-22-
by the Seller of its obligation hereunder, and the Seller agrees that it holds
such Mortgage Loans in custody for the Purchaser, subject to the Purchaser's (i)
right, prior to the Closing Date, to reject any Mortgage Loan to the extent
permitted by this Agreement, and (ii) obligation to deliver or cause to be
delivered the consideration for the Mortgage Loans pursuant to Section 8 hereof.
Any Mortgage Loans rejected by the Purchaser shall concurrently therewith be
released from the security interest created hereby. All rights and remedies of
the Purchaser under this Agreement are distinct from, and cumulative with, any
other rights or remedies under this Agreement or afforded by law or equity and
all such rights and remedies may be exercised concurrently, independently or
successively.
Notwithstanding the foregoing, if on the Closing Date, each of
the conditions set forth in Section 8 hereof shall have been satisfied and the
Purchaser shall not have paid or caused to be paid the Mortgage Loan Purchase
Price, or any such condition shall not have been waived or satisfied and the
Purchaser determines not to pay or cause to be paid the Mortgage Loan Purchase
Price, the Purchaser shall immediately effect the redelivery of the Mortgage
Loans, if delivery to the Purchaser has occurred, and the security interest
created by this Section 13 shall be deemed to have been released.
SECTION 14. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed by registered mail, postage prepaid, or
transmitted by fax and, receipt of which is confirmed by telephone, if to the
Purchaser, addressed to the Purchaser at 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxx 00000, fax (000) 000-0000, or such other address as may hereafter be
furnished to the Seller in writing by the Purchaser and if to the Seller,
addressed to the Seller at 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx
00000, fax (000) 000-0000, or to such other address as the Seller may designate
in writing to the Purchaser.
SECTION 15. SEVERABILITY OF PROVISIONS. Any part, provision,
representation or warranty of this Agreement that is prohibited or that is held
to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation or warranty of this Agreement that
is prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 16. AGREEMENT OF PARTIES. The Seller and the Purchaser
each agree to execute and deliver such instruments and take such actions as
either of the others may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement and the
Pooling and Servicing Agreement.
SECTION 17. SURVIVAL. (a) The Seller agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the Purchaser, notwithstanding any investigation heretofore or
hereafter made by the Purchaser or on its behalf, and that the representations,
warranties and agreements made by the
-23-
Seller herein or in any such certificate or other instrument shall survive the
delivery of and payment for the Mortgage Loans and shall continue in full force
and effect, notwithstanding any restrictive or qualified endorsement on the
Mortgage Notes and notwithstanding subsequent termination of this Agreement, the
Pooling and Servicing Agreement or the Trust Fund.
SECTION 18. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS (INCLUDING THE CHOICE OF LAW
PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT.
SECTION 19. MISCELLANEOUS. This Agreement may be executed in
two or more counterparts, each of which when so executed and delivered shall be
an original, but all of which together shall constitute one and the same
instrument. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Seller to the Purchaser as provided in
Section 4 hereof be, and be construed as, a sale of the Mortgage Loans by the
Seller to the Purchaser and not as a pledge of the Mortgage Loans by the Seller
to the Purchaser to secure a debt or other obligation of the Seller. However, in
the event that, notwithstanding the aforementioned intent of the parties, the
Mortgage Loans are held to be property of the Seller, then (a) it is the express
intent of the parties that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller and (b) (1) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code; (2) the conveyance provided for in Section 4 hereof shall be
deemed to be a grant by the Seller to the Purchaser of a security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Account whether in the form of cash,
instruments, securities or other property; (3) the possession by the Purchaser
or its agent of Mortgage Notes, the related Mortgages and such other items of
property that constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be "possession" by the secured party for purposes of
perfecting the security interest pursuant to the New York Uniform Commercial
Code; and (4) notifications to persons holding such property and
acknowledgments, receipts or confirmations from persons holding such property
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the
Purchaser for the
-24-
purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Purchaser pursuant to Section 4(d) hereof
shall also be deemed to be an assignment of any security interest created
hereby. The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement and the Pooling and Servicing Agreement.
Section 20. RIGHTS OF THE CERTIFICATE INSURER. The Certificate Insurer
is an express third-party beneficiary of this Agreement.
Section 21. RIGHTS OF XXXXXX XXX. The Guarantor is an express
third-party beneficiary of this Agreement.
-25-
IN WITNESS WHEREOF, the Purchaser and the Seller have caused
their names to be signed by their respective officers thereunto duly authorized
as of the date first above written.
NEW CENTURY MORTGAGE SECURITIES, INC.
By:________________________________
Name:
Title:
NC CAPITAL CORPORATION
By:________________________________
Name:
Title:
-26-
EXHIBIT E
---------
REQUEST FOR RELEASE
(for Trustee)
LOAN INFORMATION
Name of Mortgagor: ______________________________
Servicer
Loan No.: ______________________________
TRUSTEE
Name: ______________________________
Address: ______________________________
______________________________
Trustee Mortgage
File No.: ______________________________
DEPOSITOR
Name: NEW CENTURY MORTGAGE SECURITIES, INC.
Address: ______________________________
Certificates: Asset-Backed Pass-Through
Certificates, Series 2004-A.
The undersigned Servicer hereby acknowledges that it
has received from _______________________, as Trustee for the Holders of
Asset-Backed Pass-Through Certificates, Series 2004-A, the documents referred to
below (the "Documents"). All capitalized terms not otherwise defined in this
Request for Release shall have the meanings given them in the Pooling and
Servicing Agreement, dated as of July 1, 2004, among the Trustee, the Depositor,
the Guarantor with respect to the Group I Class A Certificates and the Servicers
(the "Pooling and Servicing Agreement").
( ) Promissory Note dated _______________, 20__, in the original
principal sum of $__________, made by _____________________, payable
to, or endorsed to the order of, the Trustee.
( ) Mortgage recorded on _________________________ as instrument no.
____________________ in the County Recorder's Office of the County of
_______________, State of __________________ in
book/reel/docket_________________ of official records at page/image
_____________.
E-1
( ) Deed of Trust recorded on ___________________ as instrument no.
________________ in the County Recorder's Office of the County of
_________________, State of ____________________ in book/reel/docket
_________________ of official records at page/image ______________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
__________________ as instrument no. _________ in the County Recorder's
Office of the County of _______________, State of
_______________________ in book/reel/docket ____________ of official
records at page/image ____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) ______________________________________________
( ) ______________________________________________
( ) ______________________________________________
( ) ______________________________________________
E-2
The undersigned Servicer hereby acknowledges and
agrees as follows:
(1) The Servicer shall hold and retain possession of
the Documents in trust for the benefit of the Trustee, solely for the purposes
provided in the Agreement.
(2) The Servicer shall not cause or permit the
Documents to become subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions nor shall the
Servicer assert or seek to assert any claims or rights of setoff to or against
the Documents or any proceeds thereof.
(3) The Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the Documents
has been liquidated and the proceeds thereof have been remitted to the
Collection Account and except as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including
any proceeds of proceeds, coming into the possession or control of the Servicer
shall at all times be earmarked for the account of the Trustee, and the Servicer
shall keep the Documents and any proceeds separate and distinct from all other
property in the Servicer's possession, custody or control.
Dated:
[Servicer]
By: ______________________________
Name:
Title:
E-3
EXHIBIT F-1
-----------
FORM OF TRANSFEROR REPRESENTATION LETTER
[Date]
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Re: New Century Home Equity Loan Trust, Series
2004-A, Asset Backed Pass-Through Certificates, Class
___, representing a ___% Class ___ Percentage Interest
------------------------------------------------------
Ladies and Gentlemen:
In connection with the transfer by ________________ (the
"Transferor") to ________________ (the "Transferee") of the captioned mortgage
pass-through certificates (the "Certificates"), the Transferor hereby certifies
as follows:
Neither the Transferor nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, (e) has taken any other action, that (in the case of each of
subclauses (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933, as amended (the "1933 Act"), or
would render the disposition of any Certificate a violation of Section 5 of the
1933 Act or any state securities law or would require registration or
qualification pursuant thereto. The Transferor will not act, nor has it
authorized or will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to any Certificate. The Transferor will not
sell or otherwise transfer any of the Certificates, except in compliance with
the provisions of that certain Pooling and Servicing Agreement, dated as of July
1, 2004, among New Century Mortgage Securities, Inc. as depositor, Countrywide
Home Loans Servicing LP and GMAC Mortgage Corporation as servicers, Federal
National Mortgage Association as guarantor with respect to the Group I Class A
Certificates and Deutsche Bank National Trust Company as trustee (the "Pooling
and Servicing Agreement"), pursuant to which Pooling and Servicing Agreement the
Certificates were issued.
F-1-1
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Very truly yours,
[Transferor]
By:__________________________
Name:
Title:
F-1-2
FORM OF TRANSFEREE REPRESENTATION LETTER
[Date]
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Re: New Century Home Equity Loan Trust, Series 2004-A,
Asset Backed Pass-Through Certificates, Class ___,
representing a ___% Percentage Interest
--------------------------------------------------
Ladies and Gentlemen:
In connection with the purchase from ______________________
(the "Transferor") on the date hereof of the captioned trust certificates (the
"Certificates"), _______________ (the "Transferee") hereby certifies as follows:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the
"1933 Act") and has completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. The Transferee is aware that the
sale to it is being made in reliance on Rule 144A. The Transferee is acquiring
the Certificates for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
2. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and Servicing
Agreement referred to below, and (d) any credit enhancement mechanism associated
with the Certificates, that it has requested.
All capitalized terms used but not otherwise defined herein
have the respective meanings assigned thereto in the Pooling and Servicing
Agreement, dated as of July 1, 2004, among New Century Mortgage Securities, Inc.
as depositor, Countrywide Home Loans Servicing LP and GMAC Mortgage Corporation
as Servicers, Federal National Mortgage Association as Guarantor with respect to
the Group I Class A Certificates and Deutsche Bank National Trust Company as
trustee (the "Pooling and Servicing Agreement"), pursuant to which the
Certificates were issued.
F-1-3
[TRANSFEREE]
By:__________________________
Name:
Title:
F-1-4
ANNEX 1 TO EXHIBIT F-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE
---------------------------------------------------
144A [For Transferees Other Than Registered
Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and Deutsche Bank National Trust Company as
trustee, with respect to the mortgage pass-through certificates (the
"Certificates") described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
entity purchasing the Certificates (the "Transferee").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because (i) the Transferee
owned and/or invested on a discretionary basis $______________________1 in
securities (except for the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ CORPORATION, ETC. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
___ BANK. The Transferee (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
___ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a State
or Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has an
audited net worth of at least
___ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
-------------------------
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities. $25,000,000 as demonstrated in its latest annual financial
statements, A COPY OF WHICH IS ATTACHED HERETO.
F-1-5
companies and which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) securities issued or guaranteed by the U.S. or
any instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi) repurchase agreements, (vii) securities
owned but subject to a repurchase agreement and (viii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee and did not
include any of the securities referred to in the preceding paragraph. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", the
Transferee agrees that, in connection with any purchase of securities sold to
the Transferee for the account of a third party (including any separate account)
in reliance on Rule 144A, the Transferee will only purchase for the account of a
third party that at the time is a "qualified institutional buyer" within the
meaning of Rule 144A. In addition, the Transferee agrees that the Transferee
will not purchase securities for a third party unless the Transferee has
obtained a current representation letter from such third party or taken other
appropriate steps contemplated by Rule 144A to conclude that such third party
independently meets the definition of "qualified institutional buyer" set forth
in Rule 144A.
F-1-5
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties updated annual financial statements promptly after they become
available.
Dated:
____________________________________
Print Name of Transferee
By:_________________________________
Name:
Title:
F-1-5
ANNEX 2 TO EXHIBIT F-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and Deutsche Bank National Trust Company as
trustee, with respect to the mortgage pass- through certificates (the
"Certificates") described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the entity purchasing the
Certificates (the "Transferee") or, if the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because the Transferee is part of a Family of
Investment Companies (as defined below), is such an officer of the investment
adviser (the "Adviser").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as defined in Rule 144A because
(i) the Transferee is an investment company registered under the Investment
Company Act of 1940, and (ii) as marked below, the Transferee alone, or the
Transferee's Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used.
____ The Transferee owned $___________________ in securities (other
than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one
F-1-8
or more sales to the Transferee will be in reliance on Rule 144A. In addition,
the Transferee will only purchase for the Transferee's own account.
6. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Dated:
____________________________________
Print Name of Transferee or Advisor
By:________________________________
Name:
Title:
IF AN ADVISER:
____________________________________
Print Name of Transferee
F-1-9
FORM OF TRANSFEREE REPRESENTATION LETTER
----------------------------------------
The undersigned hereby certifies on behalf of the purchaser
named below (the "Purchaser") as follows:
1. I am an executive officer of the Purchaser.
2. The Purchaser is a "qualified institutional buyer", as
defined in Rule 144A, ("Rule 144A") under the Securities Act of 1933, as
amended.
3. As of the date specified below (which is not earlier than
the last day of the Purchaser's most recent fiscal year), the amount of
"securities", computed for purposes of Rule 144A, owned and invested on a
discretionary basis by the Purchaser was in excess of $100,000,000.
Name of Purchaser
____________________________
By:_________________________
Name:
Title:
Date of this certificate:
Date of information provided in paragraph 3
F-1-10
EXHIBIT F-2
-----------
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF ______________ )
COUNTY _______________)
__________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ______________________ of
____________________________ (the "Owner") a corporation duly organized and
existing under the laws of ______________, the record owner of New Century Home
Equity Loan Trust, Series 2004-A, Asset Backed Mortgage Pass-Through
Certificates, Series 2004-A, Class R Certificates, (the "Class R Certificates"),
on behalf of whom I make this affidavit and agreement. Capitalized terms used
but not defined herein have the respective meanings assigned thereto in the
Pooling and Servicing Agreement pursuant to which the Class R Certificates were
issued.
2. The Owner (i) is and will be a "Permitted Transferee" as of
____________, 20__ and (ii) is acquiring the Class R Certificates for its own
account or for the account of another Owner which is a permitted transferee from
which it has received an affidavit in substantially the same form as this
affidavit. A "Permitted Transferee" is any person other than a "disqualified
organization" or a possession of the United States. For this purpose, a
"disqualified organization" means the United States, any state or political
subdivision thereof, any agency or instrumentality of any of the foregoing
(other than an instrumentality all of the activities of which are subject to tax
and, except for the Federal Home Loan Mortgage Corporation, a majority of whose
board of directors is not selected by any such governmental entity) or any
foreign government, international organization or any agency or instrumentality
of such foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives) that
is generally exempt from federal income tax unless such organization is subject
to the tax on unrelated business taxable income. The Owner will endeavor to
remain a Permitted Transferee for so long as it retains its Ownership Interest
in a Residual Certificate
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class R Certificates to disqualified organizations under the
Internal Revenue Code of 1986 that applies to all transfers of the Class R
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
or, if such transfer is through an agent (which person includes a broker,
nominee or middleman) for a non-Permitted Transferee, on the agent; (iii) that
the person otherwise liable for the tax shall be relieved of liability for the
tax if the transferee furnishes to such person an affidavit that the transferee
is a Permitted Transferee and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that each of the
Class R Certificates may be a "noneconomic residual interest" within the meaning
of proposed Treasury regulations promulgated under the Code and that the
transferor of a "noneconomic residual interest" will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer is to impede the assessment or collection of tax.
4. The Owner is aware of the tax imposed on a "pass-through
entity" holding the Class R Certificates if, at any time during the taxable year
of the pass-through entity, a non-Permitted Transferee is the record holder of
an interest in such entity. (For this purpose, a "pass-through entity" includes
a regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
F-2-1
5. The Owner is aware that the Trustee will not register the
transfer of any Class R Certificate unless the transferee, or the transferee's
agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. The Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
7. The Owner's taxpayer identification number is
_________________.
8. The Owner has reviewed the restrictions set forth on the
face of the Class R Certificates and the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement under which the Class R Certificates were issued
(in particular, clauses (iii)(A) and (iii)(B) of Section 5.02(d) which authorize
the Trustee to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Trustee in the event that the Owner holds such Certificate
in violation of Section 5.02(d)); and that the Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
9. The Owner is not acquiring and will not transfer the Class
R Certificates in order to impede the assessment or collection of any tax.
10. The Owner anticipates that it will, so long as it holds
the Class R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class R Certificates that the
Owner intends to pay taxes associated with holding such Class R Certificates as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Class R Certificates.
11. The Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds the
Class R Certificates.
12. The Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
13. The Owner is not acquiring the Class R Certificates with
the intent to transfer the Class R Certificates to any person or entity that
will not have sufficient assets to pay any taxes owed by the holder of such
Class R Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R Certificates remain outstanding.
14. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, obtain from its transferee the
representations required by Section 5.02(d) of the Pooling and Servicing
Agreement under which the Class R Certificate were issued and will not
consummate any such transfer if it knows, or knows facts that should lead it to
believe, that any such representations are false.
15. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, deliver to the Trustee an affidavit, which
represents and warrants that it is not transferring the Class R Certificates to
impede the assessment or collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to pay any
taxes owed by such transferee as holder
F-2-2
of the Class R Certificates; (ii) may become insolvent or subject to a
bankruptcy proceeding for so long as the Class R Certificates remains
outstanding; and (iii) is not a "Permitted Transferee".
16. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States may be included 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.
17. The Owner of the Class R Certificate, hereby agrees that
in the event that the Trust Fund created by the Pooling and Servicing Agreement
is terminated pursuant to Section 9.01 thereof, the undersigned shall assign and
transfer to the Holders of the Class CE Certificates any amounts in excess of
par received in connection with such termination. Accordingly, in the event of
such termination, the Trustee is hereby authorized to withhold any such amounts
in excess of par and to pay such amounts directly to the Holders of the Class CE
Certificates. This agreement shall bind and be enforceable against any
successor, transferee or assigned of the undersigned in the Class R Certificate.
In connection with any transfer of the Class R Certificate, the Owner shall
obtain an agreement substantially similar to this clause from any subsequent
owner.
F-2-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
__________, 20__.
[OWNER]
By:________________________
Name:
Title: [Vice] President
ATTEST:
By:_________________________________
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
20___.
____________________________
Notary Public
County of __________________
State of ___________________
My Commission expires:
F-2-4
FORM OF TRANSFEROR AFFIDAVIT
----------------------------
STATE OF ______________)
COUNTY OF ____________)
__________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ____________________ of ____________________________
(the "Owner"), a corporation duly organized and existing under the laws of
______________, on behalf of whom I make this affidavit.
2. The Owner is not transferring the Class R Certificates (the
"Residual Certificates") to impede the assessment or collection of any tax.
3. The Owner has no actual knowledge that the Person that is
the proposed transferee (the "Purchaser") of the Residual Certificates: (i) has
insufficient assets to pay any taxes owed by such proposed transferee as holder
of the Residual Certificates; (ii) may become insolvent or subject to a
bankruptcy proceeding for so long as the Residual Certificates remain
outstanding and (iii) is not a Permitted Transferee.
4. The Owner understands that the Purchaser has delivered to
the Trustee a transfer affidavit and agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit F-2. The Owner does not know or
believe that any representation contained therein is false.
5. At the time of transfer, the Owner has conducted a
reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Owner has determined that the Purchaser has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Owner understands that the transfer of a
Residual Certificate may not be respected for United States income tax purposes
(and the Owner may continue to be liable for United States income taxes
associated therewith) unless the Owner has conducted such an investigation.
6. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement.
F-2-5
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
___________, 20__.
[OWNER]
By:___________________________
Name:
Title: [Vice] President
ATTEST:
By:______________________________
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
20___.
____________________________
Notary Public
County of __________________
State of ___________________
My Commission expires:
F-2-5
EXHIBIT G
---------
FORM OF CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
_____________, 20__
New Century Mortgage Securities, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
New Century Mortgage Corporation
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Re: New Century Home Equity Loan Trust, Series 2004-A, Asset
Backed Pass-Through Certificates, Class ___
-------------------------------------------
Dear Sirs:
_______________________ (the "Transferee") intends to acquire
from _____________________ (the "Transferor") $____________ Initial Certificate
Principal Balance of New Century Home Equity Loan Trust, Series 2004-A, Asset
Backed Pass-Through Certificates, Class [B] [CE] [P] [R] (the "Certificates"),
issued pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of July 1, 2004 among New Century Mortgage Securities, Inc.
as depositor (the "Depositor"), Countrywide Home Loans Servicing LP and GMAC
Mortgage Corporation as Servicers (the "Servicers"), Federal National Mortgage
Association as guarantor with respect to the Group I Class A Certificates (the
"Guarantor") and Deutsche Bank National Trust Company as trustee (the
"Trustee"). Capitalized terms used herein and not otherwise defined shall have
the meanings assigned thereto in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to, and covenants with the
Depositor, the Trustee and the Servicer the following:
The Certificates (i) are not being acquired by, and will not
be transferred to, any employee benefit plan within the meaning of section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
other retirement arrangement, including individual retirement accounts and
annuities, Xxxxx plans and bank collective investment funds and insurance
company general or separate accounts in which such plans, accounts or
arrangements are invested, that is subject to Section 406 of ERISA or Section
4975 of the Internal Revenue Code of 1986 (the "Code") (any of the foregoing, a
"Plan"), (ii) are not being acquired with "plan assets" of a Plan within the
meaning of the Department of Labor ("DOL") regulation, 29 C.F.R. ss. 2510.3-101,
and (iii) will not be transferred to any entity that is deemed to be investing
in plan assets within the meaning of the DOL regulation at 29
C.F.R.ss.2510.3-101.
Very truly yours,
______________________________
By:___________________________
Name:
G-1
Title:
EXHIBIT H
FORM OF REPORT PURSUANT TO SECTION 4.06
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
Annual Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (Fee Required)
For fiscal year ended ________________
Commission file number: 333-_______
NEW CENTURY MORTGAGE SECURITIES, INC.
(as depositor under the Pooling and Servicing Agreement,
dated as of July 1, 2004, providing for the issuance of
Asset Backed Pass-Through Certificates, Series 2004-A)
New Century Mortgage Securities, Inc.
-------------------------------------
(Exact name of registrant as specified in its charter)
--------------------------------------------------------------------------------
DELAWARE 00-0000000
---------------------------------- ----------------------
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation) Identification Number)
00000 Xxx Xxxxxx, Xxxxx 0000
XXXXXX, XXXXXXXXXX 00000
------------------------------------------- -----
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (000) 000-0000
--------------
--------------------------------------------------------------------------------
H-2
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate whether the Registrant: (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 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.
X YES ___No
Item 1. Business:
Not applicable
Item 2. Properties:
Not applicable
Item 3. Legal Proceedings:
None
Item 4. Submission of Matters to a Vote of Security-Holders
None
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
To the best knowledge of the registrant there is no established public trading
market for the certificates.
There are approximately _____ holders of record as of the end of the reporting
year.
Item 6. Selected Financial Data.
Not applicable.
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Not applicable
Item 8. Financial Statements and Supplementary Data.
Not applicable.
H-3
Item 9. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure
None
Item 10.
Not applicable
Item 11. Executive Compensation
Not applicable
Item 12. Security Ownership of Certain Beneficial Owners and Management
Not applicable
Item 13. Certain Relationships and Related Transactions
Not applicable
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
a) The company filed on Form 8-K, separately for each
distribution date, the distribution of funds related to the
trust for each of the following distribution
dates:
Distribution Date Form 8-K Filing Date
----------------- --------------------
_________________ ____________________
_________________ ____________________
_________________ ____________________
b) 99.1 Annual Report of Independent Public Accountants'
as to master servicing activities or servicing
activities, as applicable, of:
(a) New Century Mortgage Corporation, as Servicer
99.2 Annual Statement of Compliance with obligations under
the Pooling and Servicing Agreement or servicing agreement, as
applicable, of:
(a) New Century Mortgage Corporation, as Servicer
Such document (i) is not filed herewith since such document was not received by
the Reporting Person at least three business days prior to the due date of this
report; and (ii) will be included in an amendment to this report on Form 10-K/A
to be filed within 30 days of the Reporting Person's receipt of such document.
Signatures
H-4
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly authorized.
Date: ___________
New Century Mortgage Securities, Inc., by
Deutsche Bank National Trust Company as
Trustee for New Century Home Equity Loan
Trust, Series 2004-A, Asset Backed
Pass-Through Certificates.
By: _____________________________________
Name:
Title:
Company:
H-5
EXHIBIT I
FORM OF LOST NOTE AFFIDAVIT
Loan #: ____________
Borrower: _____________
LOST NOTE AFFIDAVIT
I, as ____________________ of ______________________, a
_______________ corporation am authorized to make this Affidavit on behalf of
_____________________ (the "Seller"). In connection with the administration of
the Mortgage Loans held by ____________________, a _________________ corporation
as Seller on behalf of New Century Mortgage Securities, Inc. (the "Purchaser"),
_____________________ (the "Deponent"), being duly sworn, deposes and says that:
1. The Seller's address is: _____________________
_____________________
_____________________
2. The Seller previously delivered to the Purchaser a signed
Initial Certification with respect to such Mortgage and/or
Assignment of Mortgage.
3. Such Mortgage Note and/or Assignment of Mortgage was assigned
or sold to the Purchaser by ________________________, a
____________ corporation pursuant to the terms and provisions
of a Mortgage Loan Purchase Agreement dated as of
__________ __, ____.
4. Such Mortgage Note and/or Assignment of Mortgage is not
outstanding pursuant to a request for release of Documents.
5. Aforesaid Mortgage Note and/or Assignment of Mortgage (the
"Original") has been lost.
6. Deponent has made or caused to be made a diligent search for
the Original and has been unable to find or recover same.
7. The Seller was the Seller of the Original at the time of the
loss.
8. Deponent agrees that, if said Original should ever come into
Seller's possession, custody or power, Seller will immediately
and without consideration surrender the Original to the
Purchaser.
9. Attached hereto is a true and correct copy of (i) the Note,
endorsed in blank by the Mortgagee and (ii) the Mortgage or
Deed of Trust (strike one) which secures the Note, which
Mortgage or Deed of Trust is recorded in the county where the
property is located.
10. Deponent hereby agrees that the Seller (a) shall indemnify and
hold harmless the Purchaser, its successors and assigns,
against any loss, liability or damage, including reasonable
I-1
attorney's fees, resulting from the unavailability of any
Notes, including but not limited to any loss, liability or
damage arising from (i) any false statement contained in this
Affidavit, (ii) any claim of any party that has already
purchased a mortgage loan evidenced by the Lost Note or any
interest in such mortgage loan, (iii) any claim of any
borrower with respect to the existence of terms of a mortgage
loan evidenced by the Lost Note on the related property to the
fact that the mortgage loan is not evidenced by an original
note and (iv) the issuance of a new instrument in lieu thereof
(items (i) through (iv) above hereinafter referred to as the
"Losses") and (b) if required by any Rating Agency in
connection with placing such Lost Note into a Pass-Through
Transfer, shall obtain a surety from an insurer acceptable to
the applicable Rating Agency to cover any Losses with respect
to such Lost Note.
11. This Affidavit is intended to be relied upon by the Purchaser,
its successors and assigns. _____________________, a
______________ corporation represents and warrants that is has
the authority to perform its obligations under this Affidavit
of Lost Note.
Executed this ____ day, of ___________ ______.
SELLER
By:______________________
Name:
Title:
On this _____ day of ________, _____, before me appeared
_________________ to me personally known, who being duly sworn did say that he
is the _____________________ of ____________________ a ______________
corporation and that said Affidavit of Lost Note was signed and sealed on behalf
of such corporation and said acknowledged this instrument to be the free act and
deed of said corporation.
Signature:
[Seal]
I-2
EXHIBIT J-1
FORM CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
Certification
1. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of New
Century Home Equity Loan Trust 2004-A, Asset Backed Notes, Series 2004-A;
2. Based on my knowledge, the information in these reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing
information required to be provided to the trustee by the servicer under the
pooling and servicing, or similar, agreement, for inclusion in these reports is
included in these reports;
4. Based on my knowledge and upon the annual compliance
statement included in the report and required to be delivered to the trustee in
accordance with the terms of the pooling and servicing, or similar, agreement,
and except as disclosed in the reports, the servicer has fulfilled its
obligations under the servicing agreement; and
5. The reports disclose all significant deficiencies relating
to the servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar procedure, as set forth in the pooling and servicing, or similar,
agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties: Deutsche
Bank National Trust Company.
NEW CENTURY MORTGAGE SECURITIES, INC.
By:_________________________________
Name:
Title:
Date:
X-0-0
XXXXXXX X-0
FORM CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY THE TRUSTEE
Re: New Century Home Equity Loan Trust 2004-A
Asset-Backed Notes, Series 2004-A
I, [identify the certifying individual], a [title] of Deutsche
Bank National Trust Company, as Trustee, hereby certify to New Century Mortgage
Securities, Inc. (the "Depositor"), and its officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification,
that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year 2004, and all reports on Form 8-K containing distribution reports
filed in respect of periods included in the year covered by that annual report,
of the Depositor relating to the above-referenced trust;
2. Based on my knowledge, the information in these
distribution reports prepared by the Trustee, taken as a whole, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading as of the last day of the period
covered by that annual report; and
3. Based on my knowledge, the distribution information
required to be provided by the Trustee under the Pooling and Servicing Agreement
is included in these distribution reports.
Capitalized terms used but not defined herein have the
meanings ascribed to them in the Pooling and Servicing Agreement, dated July 1,
2004 (the "Pooling and Servicing Agreement"), among the Depositor, Countrywide
Home Loans Servicing LP and GMAC Mortgage Corporation as Servicers, Federal
National Mortgage Association as Guarantor with respect to the Group I Class A
Certificates and Deutsche Bank National Trust Company, as trustee.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
By:__________________________
Name:
Title:
Date:
X-0-0
XXXXXXX X-0
FORM CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY THE SERVICERS
Re: New Century Home Equity Loan Trust 2004-A
Asset-Backed Notes, Series 2004-A
I, [identify the certifying individual], a [title] of [Countrywide Home
Loans Servicing LP/GMAC Mortgage Corporation], as Servicer, hereby certify to
New Century Mortgage Securities, Inc. (the "Depositor"), and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year 2004, and all reports on Form 8-K containing distribution reports
filed in respect of periods included in the year covered by that annual report,
of the Depositor relating to the above-referenced trust;
2. Based on my knowledge, the distribution or servicing
information required to be provided to the trustee by the servicer under the
pooling and servicing, or similar, agreement, for inclusion in these reports is
included in these reports;
4. Based on my knowledge and upon the annual compliance
statement included in the report and required to be delivered to the trustee in
accordance with the terms of the pooling and servicing, or similar, agreement,
and except as disclosed in the reports, the servicer has fulfilled its
obligations under the pooling and servicing agreement; and
5. The reports disclose all significant deficiencies relating
to the annual compliance statement with the minimum servicing standards based
upon the report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure, as set forth in the pooling and servicing, or
similar, agreement, that is included in these reports.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated July 1, 2004 (the
"Pooling and Servicing Agreement"), among the Depositor, Countrywide Home Loans
Servicing LP and GMAC Mortgage Corporation as Servicers, Federal National
Mortgage Association as Guarantor with respect to the Group I Class A
Certificates and Deutsche Bank National Trust Company, as trustee.
Date: __________________
______________________
[Signature]
[Title]
K-1
K-2
EXHIBIT K
---------
[RESERVED]
K-3
EXHIBIT L
---------
FORM OF ANNUAL STATEMENT AS TO COMPLIANCE
New Century Home Equity Loan Trust, Series 2004-A
Asset Backed Pass-Through Certificates
I, _____________________, hereby certify that I am a duly
appointed __________________________ of [Countrywide Home Loans Servicing
LP/GMAC Mortgage Corporation] (the "Servicer"), and further certify as follows:
1. This certification is being made pursuant to the terms of
the Pooling and Servicing Agreement, dated as of July 1, 2004, (the
"Agreement"), among New Century Mortgage Securities, Inc., as depositor,
Countrywide Home Loans Servicing LP and GMAC Mortgage Corporation, as servicers,
Federal National Mortgage Association as guarantor with respect to the Group I
Class A Certificates and Deutsche Bank National Trust Company, as trustee.
2. I have reviewed the activities of the Servicer during the
preceding year and the Servicer's performance under the Agreement and to the
best of my knowledge, based on such review, the Servicer has fulfilled all of
its obligations under the Agreement throughout the year.
Capitalized terms not otherwise defined herein have the
meanings set forth in the Agreement.
Dated: _____________
L-4
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ____________________.
By: __________________________
Name:
Title:
I, _________________________, a (an) __________________ of the
Servicer, hereby certify that _________________ is a duly elected, qualified,
and acting _______________________ of the Servicer and that the signature
appearing above is his/her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ____________________.
By: __________________________
Name:
Title:
L-5
Schedule 1
MORTGAGE LOAN SCHEDULE
[FILED BY PAPER]
Schedule 1-1
Schedule 2
SCHEDULE OF PREPAYMENT CHARGES
[AVAILABLE UPON REQUEST]
Schedule 2-1
