NOMURA HOME EQUITY LOAN, INC., Depositor NOMURA CREDIT & CAPITAL, INC., Sponsor GMAC MORTGAGE, LLC a Servicer WELLS FARGO BANK, NATIONAL ASSOCIATION, Master Servicer and Securities Administrator and HSBC BANK USA, NATIONAL ASSOCIATION Trustee POOLING...
NOMURA
HOME EQUITY LOAN, INC.,
Depositor
NOMURA
CREDIT & CAPITAL, INC.,
Sponsor
GMAC
MORTGAGE, LLC
a
Servicer
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
Master
Servicer and Securities Administrator
and
HSBC
BANK
USA, NATIONAL ASSOCIATION
Trustee
Dated
as
of January 1, 2007
NOMURA
HOME EQUITY LOAN, INC.
ASSET-BACKED
CERTIFICATES, SERIES 2007-1
TABLE
OF CONTENTS
|
ARTICLE
I
DEFINITIONS
|
|
|
Section
1.01
|
Defined
Terms.
|
|
Section
1.02
|
Allocation
of Certain Interest Shortfalls.
|
|
ARTICLE
II
CONVEYANCE
OF TRUST FUND REPRESENTATIONS AND WARRANTIES
|
|
|
Section
2.01
|
Conveyance
of Trust Fund.
|
|
Section
2.02
|
Acceptance
of the Mortgage Loans.
|
|
Section
2.03
|
Representations,
Warranties and Covenants of GMACM and the Sponsor.
|
|
Section
2.04
|
Representations
and Warranties of the Depositor.
|
|
Section
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
|
Section
2.06
|
Issuance
of the REMIC IA Regular Interests and REMIC IIA Regular
Interests.
|
|
Section
2.07
|
Conveyance
of the REMIC IA Regular Interests, REMIC IB Regular Interests,
Class I-X Interest, Class I-P Interest, Class I-IO Interest, REMIC
IIA
Regular Interests, REMIC IIB Regular Interests, Class II-X Interest,
Class
II-P Interest and Class II-IO Interest.
|
|
Section
2.08
|
Issuance
of Class I-R Certificates, the Class II-R Certificates, the Class
I-R-X
Certificates and the Class II-R-X Certificates.
|
|
Section
2.09
|
Establishment
of Trust.
|
|
Section
2.10
|
Purpose
and Powers of the Trust.
|
|
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS; ACCOUNTS
|
|
|
Section
3.01
|
GMACM
to act as Servicer of the related Mortgage Loans.
|
|
Section
3.02
|
Due-on-Sale
Clauses; Assumption Agreements.
|
|
Section
3.03
|
Subservicers.
|
|
Section
3.04
|
Documents,
Records and Funds in Possession of a Servicer To Be Held for
Trustee.
|
|
Section
3.05
|
Maintenance
of Hazard Insurance.
|
|
Section
3.06
|
Presentment
of Claims and Collection of Proceeds.
|
|
Section
3.07
|
Maintenance
of Insurance Policies.
|
|
Section
3.08
|
Reserved.
|
|
Section
3.09
|
Realization
Upon Defaulted Mortgage Loans; Determination of Excess Liquidation
Proceeds and Realized Losses; Repurchases of Certain Mortgage
Loans.
|
|
Section
3.10
|
Servicing
Compensation.
|
|
Section
3.11
|
REO
Property.
|
|
Section
3.12
|
Liquidation
Reports.
|
|
Section
3.13
|
Annual
Statement as to Compliance.
|
|
Section
3.14
|
Assessments
of Compliance and Attestation Reports.
|
|
Section
3.15
|
Books
and Records.
|
|
Section
3.16
|
The
Trustee.
|
|
Section
3.17
|
REMIC-Related
Covenants.
|
|
Section
3.18
|
Annual
Xxxxxxxx-Xxxxx Certification; Additional Information.
|
|
Section
3.19
|
Release
of Mortgage Files.
|
|
Section
3.20
|
Documents,
Records and Funds in Possession of the Servicers to be held for
Trustee.
|
|
Section
3.21
|
Possession
of Certain Insurance Policies and Documents.
|
|
Section
3.22
|
[Reserved].
|
|
Section
3.23
|
[Reserved].
|
|
Section
3.24
|
Optional
Purchase of Certain Mortgage Loans.
|
|
Section
3.25
|
[Reserved].
|
|
Section
3.26
|
Collection
of Mortgage Loan Payments; Custodial Accounts.
|
|
Section
3.27
|
Permitted
Withdrawals From the Custodial Accounts.
|
|
Section
3.28
|
Reports
to Master Servicer.
|
|
Section
3.29
|
Collection
of Taxes; Assessments and Similar Items; Escrow
Accounts.
|
|
Section
3.30
|
Adjustments
to Mortgage Rate and Scheduled Payment.
|
|
Section
3.31
|
Distribution
Account.
|
|
Section
3.32
|
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
|
Section
3.33
|
Duties
of the Credit Risk Manager; Termination.
|
|
Section
3.34
|
Intellectual
Property and Confidentiality.
|
|
Section
3.35
|
Limitation
Upon Liability of Credit Risk Manager; Indemnification.
|
|
Section
3.36
|
Resignation
or Removal of Credit Risk Manager.
|
|
ARTICLE
IV
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS
|
|
|
Section
4.01
|
The
Master Servicer.
|
|
Section
4.02
|
Monitoring
of Servicers.
|
|
Section
4.03
|
Fidelity
Bond.
|
|
Section
4.04
|
Power
to Act; Procedures.
|
|
Section
4.05
|
Due-on-Sale
Clauses; Assumption Agreements.
|
|
Section
4.06
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
|
|
Section
4.07
|
Standard
Hazard Insurance and Flood Insurance Policies.
|
|
Section
4.08
|
Presentment
of Claims and Collection of Proceeds.
|
|
Section
4.09
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
|
Section
4.10
|
Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
|
|
Section
4.11
|
Realization
Upon Defaulted Loans.
|
|
Section
4.12
|
Compensation
for the Master Servicer.
|
|
Section
4.13
|
REO
Property.
|
|
Section
4.14
|
Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
ARTICLE
V
ADVANCES
AND DISTRIBUTIONS
|
|
|
Section
5.01
|
Advances;
Advance Facility.
|
|
Section
5.02
|
Compensating
Interest Payments.
|
|
Section
5.03
|
REMIC
Distributions.
|
|
Section
5.04
|
Distributions
on the Group I Certificates.
|
|
Section
5.05
|
Distributions
on the Group II Certificates.
|
|
Section
5.06
|
Allocation
of Realized Losses on the Group I Mortgage Loans.
|
|
Section
5.07
|
Allocation
of Realized Losses on the Group II Mortgage Loans.
|
|
Section
5.08
|
Monthly
Statements to Certificateholders.
|
|
Section
5.09
|
REMIC
Designations and REMIC Allocations.
|
|
Section
5.10
|
Prepayment
Charges.
|
|
Section
5.11
|
Class
I-P Certificate Account and the Class II-P Certificate
Account.
|
|
Section
5.12
|
Net
WAC Reserve Fund.
|
|
Section
5.13
|
Basis
Risk Shortfall Reserve Fund.
|
|
Section
5.14
|
Supplemental
Interest Trust.
|
|
Section
5.15
|
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
|
Section
5.16
|
Reports
Filed with Securities and Exchange Commission.
|
|
Section
5.17
|
Final
Maturity Reserve Trust.
|
|
Section
5.18
|
Swap
Collateral Accounts
|
|
Section
5.19
|
Cap
Collateral Account
|
|
ARTICLE
VI
THE
CERTIFICATES
|
|
|
Section
6.01
|
The
Certificates.
|
|
Section
6.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
|
Section
6.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
Section
6.04
|
Persons
Deemed Owners.
|
|
Section
6.05
|
Access
to List of Certificateholders’ Names and Addresses.
|
|
Section
6.06
|
Book-Entry
Certificates.
|
|
Section
6.07
|
Notices
to Depository.
|
|
Section
6.08
|
Definitive
Certificates.
|
|
Section
6.09
|
Maintenance
of Office or Agency.
|
|
ARTICLE
VII
THE
DEPOSITOR, GMACM AND THE MASTER SERVICER
|
|
|
Section
7.01
|
Liabilities
of the Depositor, GMACM and the Master Servicer.
|
|
Section
7.02
|
Merger
or Consolidation of the Depositor, GMACM or the Master
Servicer.
|
|
Section
7.03
|
Indemnification
of the Depositor and Servicing Function Participants.
|
|
Section
7.04
|
Limitations
on Liability of the Depositor, Securities Administrator, Master Servicer,
Servicer and Others.
|
|
Section
7.05
|
Servicers
Not to Resign.
|
|
Section
7.06
|
Termination
of GMACM Without Cause; Appointment of Special
Servicer.
|
|
Section
7.07
|
Limitation
on Resignation of the Master Servicer.
|
|
Section
7.08
|
Assignment
of Master Servicing.
|
|
Section
7.09
|
Rights
of the Depositor in Respect of GMACM and the Master Servicer.
|
|
ARTICLE
VIII
DEFAULT;
TERMINATION OF SERVICER AND MASTER SERVICER
|
|
|
Section
8.01
|
Events
of Default.
|
|
Section
8.02
|
Master
Servicer or Trustee to Act; Appointment of Successor.
|
|
Section
8.03
|
Notification
to Certificateholders.
|
|
Section
8.04
|
Waiver
of Servicer Defaults and Master Servicer Defaults.
|
|
ARTICLE
IX
CONCERNING
THE TRUSTEE AND SECURITIES ADMINISTRATOR
|
|
|
Section
9.01
|
Duties
of Trustee and Securities Administrator.
|
|
Section
9.02
|
Certain
Matters Affecting the Trustee and Securities
Administrator.
|
|
Section
9.03
|
Trustee
and Securities Administrator not Liable for Certificates or Mortgage
Loans.
|
|
Section
9.04
|
Trustee
and Securities Administrator May Own Certificates.
|
|
Section
9.05
|
Fees
and Expenses of Trustee and Securities Administrator.
|
|
Section
9.06
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
|
Section
9.07
|
Resignation
and Removal of Trustee and Securities Administrator.
|
|
Section
9.08
|
Successor
Trustee or Securities Administrator.
|
|
Section
9.09
|
Merger
or Consolidation of Trustee or Securities
Administrator.
|
|
Section
9.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
Section
9.11
|
Appointment
of Office or Agency.
|
|
Section
9.12
|
Representations
and Warranties.
|
|
Section
9.13
|
Tax
Matters.
|
|
ARTICLE
X
TERMINATION
|
|
|
Section
10.01
|
Termination
Upon Liquidation or Repurchase of all Mortgage Loans.
|
|
Section
10.02
|
Final
Distribution on the Certificates.
|
|
Section
10.03
|
Additional
Termination Requirements.
|
|
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
|
|
Section
11.01
|
Amendment.
|
|
Section
11.02
|
Recordation
of Agreement; Counterparts.
|
|
Section
11.03
|
Governing
Law.
|
|
Section
11.04
|
Intention
of Parties.
|
|
Section
11.05
|
Notices.
|
|
Section
11.06
|
Severability
of Provisions.
|
|
Section
11.07
|
Assignment.
|
|
Section
11.08
|
Limitation
on Rights of Certificateholders.
|
|
Section
11.09
|
Certificates
Nonassessable and Fully Paid.
|
|
Section
11.10
|
Intention
of the Parties and Interpretation.
|
|
Section
11.11
|
Early
Termination of the Cap Contracts.
|
|
Section
11.12
|
Early
Termination of a Swap Agreement.
|
|
Section
11.13
|
Third
Party Beneficiary
|
|
EXHIBITS
|
|
|
Exhibit
A-1
|
Form
of Class [I]-A-[1][2][3][4] Certificates
|
|
Exhibit
A-2
|
Form
of Class II-[1-A] [2-A-1A][2-A-1B][2-A-2][2-A-3][2-A-4A][2-A-4B]
Certificates
|
|
Exhibit
A-3
|
Form
of Class I-M-[1][2][3] Certificates
|
|
Exhibit
A-4
|
Form
of Class II-M-[1][2][3][4][5][6][7][8] Certificates
|
|
Exhibit
A-5
|
Form
of Class [I][II]-P Certificates
|
|
Exhibit
A-6
|
Form
of Class [I][II]-X Certificates
|
|
Exhibit
A-7
|
Form
of Class [I][II]-[R][R-X] Certificates
|
|
Exhibit
B
|
Mortgage
Loan Schedule
|
|
Exhibit
C
|
Form
of Mortgage Loan Purchase Agreement
|
|
Exhibit
D
|
Form
of Transfer Affidavit
|
|
Exhibit
E
|
Form
of Transferor Certificate
|
|
Exhibit
F
|
Form
of Investment Letter (Non-Rule 144A)
|
|
Exhibit
G
|
Form
of Rule 144A Investment Letter
|
|
Exhibit
H
|
Form
of Additional Disclosure Notification
|
|
Exhibit
I
|
DTC
Letter of Representations
|
|
Exhibit
J
|
Schedule
of Mortgage Loans with Lost Notes
|
|
Exhibit
K
|
Appendix
E of the Standard & Poor's Glossary For File Format For LEVELS®
Version 5.7 Revised
|
|
Exhibit
L
|
Relevant
Servicing Criteria
|
|
Exhibit
M
|
Form
of Back-Up Certification
|
|
Exhibit
N
|
Reporting
Responsibility
|
|
Exhibit
O
|
Cap
Contracts
|
|
Exhibit
P
|
Interest
Rate Swap Agreements
|
|
Exhibit
Q
|
Assignment,
Assumption and Recognition Agreement
|
|
Exhibit
R
|
Prepayment
Charge Schedule
|
|
Exhibit
X-1
|
Form
of Schedule of Default Loan Data
|
|
Exhibit
X-2
|
Standard
File Layout - Delinquency Reporting
|
|
Exhibit
X-3
|
Form
of Schedule of Realized Losses/Gains
|
|
Schedule
One
|
Final
Maturity Reserve Schedule
|
POOLING
AND SERVICING AGREEMENT, dated as of January 1, 2007, among NOMURA HOME EQUITY
LOAN, INC., a Delaware corporation, as depositor (the “Depositor”), NOMURA
CREDIT & CAPITAL, INC., a Delaware corporation, as seller (in such capacity,
the “Sponsor”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association, as master servicer (the “Master Servicer”) and as securities
administrator (the “Securities Administrator”), GMAC MORTGAGE, LLC, a Delaware
limited liability company corporation, as a servicer (a “Servicer” or “GMACM”)
and HSBC BANK, USA, NATIONAL ASSOCIATION, a national banking association, not
in
its individual capacity, but solely as trustee (the “Trustee”).
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates.
REMIC IA
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Group I Mortgage Loans and certain
other related assets as set forth in the definition of REMIC IA (exclusive
of the Cap Contracts, the Net WAC Reserve Fund, the Group I Swap Agreement,
payments from the Supplemental Interest Trust and obligations to make payments
to the Supplemental Interest Trust in respect of the Group I Swap Agreement
and
the Final Maturity Reserve Account) subject to this Agreement as a real estate
mortgage investment conduit (a “REMIC”) for federal income tax purposes, and
such segregated pool of assets will be designated as “REMIC IA”. The Class
R-1A Interest will represent the sole Class of “residual interests” in
REMIC IA for purposes of the REMIC Provisions (as defined herein) under
federal income tax law. The following table irrevocably sets forth the
designation, the Uncertificated REMIC IA Pass-Through Rate, the Initial
Uncertificated Principal Balance, and for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date”
for each of the REMIC IA Regular Interests. None of the REMIC IA
Regular Interests will be certificated.
|
Designation
|
Uncertificated
REMIC IA
Pass-Through
Rate
|
Initial
Certificate
Principal
Balance
|
Assumed
Final
Maturity
Date(1)
|
|
|
I
|
(2)
|
$
|
311,463,669.72
|
February
25, 2037
|
|
I-1-A
|
(2)
|
$
|
2,233,508.83
|
February
25, 2037
|
|
I-1-B
|
(2)
|
$
|
2,233,508.83
|
February
25, 2037
|
|
I-2-A
|
(2)
|
$
|
2,791,069.20
|
February
25, 2037
|
|
I-2-B
|
(2)
|
$
|
2,791,069.20
|
February
25, 2037
|
|
I-3-A
|
(2)
|
$
|
2,682,703.96
|
February
25, 2037
|
|
I-3-B
|
(2)
|
$
|
2,682,703.96
|
February
25, 2037
|
|
I-4-A
|
(2)
|
$
|
2,578,538.55
|
February
25, 2037
|
|
I-4-B
|
(2)
|
$
|
2,578,538.55
|
February
25, 2037
|
|
I-5-A
|
(2)
|
$
|
2,478,410.46
|
February
25, 2037
|
|
I-5-B
|
(2)
|
$
|
2,478,410.46
|
February
25, 2037
|
|
I-6-A
|
(2)
|
$
|
2,382,163.42
|
February
25, 2037
|
|
I-6-B
|
(2)
|
$
|
2,382,163.42
|
February
25, 2037
|
|
I-7-A
|
(2)
|
$
|
2,289,647.23
|
February
25, 2037
|
|
I-7-B
|
(2)
|
$
|
2,289,647.23
|
February
25, 2037
|
|
I-8-A
|
(2)
|
$
|
2,200,717.50
|
February
25, 2037
|
|
I-8-B
|
(2)
|
$
|
2,200,717.50
|
February
25, 2037
|
|
I-9-A
|
(2)
|
$
|
723,908.87
|
February
25, 2037
|
|
I-9-B
|
(2)
|
$
|
723,908.87
|
February
25, 2037
|
|
I-10-A
|
(2)
|
$
|
1,380,790.90
|
February
25, 2037
|
|
I-10-B
|
(2)
|
$
|
1,380,790.90
|
February
25, 2037
|
|
I-11-A
|
(2)
|
$
|
1,327,128.16
|
February
25, 2037
|
|
I-11-B
|
(2)
|
$
|
1,327,128.16
|
February
25, 2037
|
|
I-12-A
|
(2)
|
$
|
1,275,546.87
|
February
25, 2037
|
|
I-12-B
|
(2)
|
$
|
1,275,546.87
|
February
25, 2037
|
|
I-13-A
|
(2)
|
$
|
1,225,966.43
|
February
25, 2037
|
|
I-13-B
|
(2)
|
$
|
1,225,966.43
|
February
25, 2037
|
|
I-14-A
|
(2)
|
$
|
1,178,309.35
|
February
25, 2037
|
|
I-14-B
|
(2)
|
$
|
1,178,309.35
|
February
25, 2037
|
|
I-15-A
|
(2)
|
$
|
1,132,501.14
|
February
25, 2037
|
|
I-15-B
|
(2)
|
$
|
1,132,501.14
|
February
25, 2037
|
|
I-16-A
|
(2)
|
$
|
1,088,470.19
|
February
25, 2037
|
|
I-16-B
|
(2)
|
$
|
1,088,470.19
|
February
25, 2037
|
|
I-17-A
|
(2)
|
$
|
1,046,147.66
|
February
25, 2037
|
|
I-17-B
|
(2)
|
$
|
1,046,147.66
|
February
25, 2037
|
|
I-18-A
|
(2)
|
$
|
1,005,467.38
|
February
25, 2037
|
|
I-18-B
|
(2)
|
$
|
1,005,467.38
|
February
25, 2037
|
|
I-19-A
|
(2)
|
$
|
966,365.72
|
February
25, 2037
|
|
I-19-B
|
(2)
|
$
|
966,365.72
|
February
25, 2037
|
|
I-20-A
|
(2)
|
$
|
928,781.54
|
February
25, 2037
|
|
I-20-B
|
(2)
|
$
|
928,781.54
|
February
25, 2037
|
|
I-21-A
|
(2)
|
$
|
892,656.04
|
February
25, 2037
|
|
I-21-B
|
(2)
|
$
|
892,656.04
|
February
25, 2037
|
|
I-22-A
|
(2)
|
$
|
857,932.71
|
February
25, 2037
|
|
I-22-B
|
(2)
|
$
|
857,932.71
|
February
25, 2037
|
|
I-23-A
|
(2)
|
$
|
824,782.46
|
February
25, 2037
|
|
I-23-B
|
(2)
|
$
|
824,782.46
|
February
25, 2037
|
|
I-24-A
|
(2)
|
$
|
792,928.43
|
February
25, 2037
|
|
I-24-B
|
(2)
|
$
|
792,928.43
|
February
25, 2037
|
|
I-25-A
|
(2)
|
$
|
762,061.82
|
February
25, 2037
|
|
I-25-B
|
(2)
|
$
|
762,061.82
|
February
25, 2037
|
|
I-26-A
|
(2)
|
$
|
732,394.06
|
February
25, 2037
|
|
I-26-B
|
(2)
|
$
|
732,394.06
|
February
25, 2037
|
|
I-27-A
|
(2)
|
$
|
18,026,101.18
|
February
25, 2037
|
|
I-27-B
|
(2)
|
$
|
18,026,101.18
|
February
25, 2037
|
|
I-P
|
(3)
|
$
|
100.00
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in
February 2037 has
been designated as the “latest possible maturity date” for each
REMIC IA Regular Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC IA
Pass-Through Rate” herein.
|
|
(3)
|
REMIC IA
Regular Interest I-P will not be entitled to distributions of
interest.
|
REMIC IB
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the REMIC IA Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as “REMIC IB”. The Class R-1B Interest will represent the
sole Class of “residual interests” in REMIC IB for purposes of the REMIC
Provisions. The following table irrevocably sets forth the designation,
Uncertificated REMIC IB Pass-Through Rate and Initial Uncertificated
Principal Balance and for purposes of satisfying Treas. Reg. 1.860G - 1
(a)(4)(iii), the “latest possible maturity date” for each of the “regular
interests” in REMIC IB created hereunder. None of the REMIC IB Regular
Interests will be certificated.
|
Designation
|
Initial
Uncertificated
Principal
Balance
|
Uncertificated
REMIC IB
Pass-Through
Rate
|
Assumed
Final
Maturity
Date(1)
|
|
LTI-AA
|
$ 207,306,098.16
|
Variable(2)
|
February
25, 2037
|
|
LTI-IA1
|
$
834,585.00
|
Variable(2)
|
February
25, 2037
|
|
LTI-IA2
|
$
146,725.00
|
Variable(2)
|
February
25, 2037
|
|
LTI-IA3
|
$
422,640.00
|
Variable(2)
|
February
25, 2037
|
|
LTI-IA4
|
$ 558,050.00
|
Variable(2)
|
February
25, 2037
|
|
LTI-IM1
|
$
79,325.00
|
Variable(2)
|
February
25, 2037
|
|
LTI-IM2
|
$
46,540.00
|
Variable(2)
|
February
25, 2037
|
|
LTI-IM3
|
$
27,500.00
|
Variable(2)
|
February
25, 2037
|
|
LTI-IZZ
|
$
2,115,371.70
|
Variable(2)
|
February
25, 2037
|
|
LTI-SC
|
$
11,161.00
|
Xxxxxxxx(0)
|
Xxxxxxxx
00, 0000
|
|
XXX-XXX
|
$
31,146.37
|
Variable(2)
|
February
25, 2037
|
|
LTI-XX
|
$ 211,494,527.49
|
Variable(2)
|
February
25, 2037
|
|
LTI-I-IO
|
N/A(3)
|
Variable(2)
|
February
25, 2037
|
|
LTI-IP
|
$
100.00
|
(4)
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in February 2037 has been designated as the
“latest
possible maturity date” for each REMIC IB Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC IB
Pass-Through Rate” herein.
|
|
(3)
|
REMIC IB
Regular Interest LTI-I-IO will not have an Uncertificated Principal
Balance, but will accrue interest on its Uncertificated Notional
Amount,
as defined herein.
|
|
(4)
|
REMIC IB
Regular Interest LTI-I-IP will not be entitled to distributions of
interest.
|
REMIC IC
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the REMIC IB Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as “REMIC IC”. The Class R-1C Interest will represent the
sole Class of “residual interests” in REMIC IC for purposes of the REMIC
Provisions. The following table irrevocably sets forth the Class designation,
Pass-Through Rate and Initial Certificate Principal Balance for each Class
of
Certificates and REMIC IC Regular Interests that represent one or more of the
“regular interests” in REMIC IC created hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Maturity
Date(1)
|
|
Class
I-A-1
|
$ 166,917,000.00
|
Class
I-A-1 Pass-Through Rate
|
February
25, 2037
|
|
Class
I-A-2
|
$
29,345,000.00
|
Class
I-A-2 Pass-Through Rate
|
February
25, 2037
|
|
Class
I-A-3
|
$
84,528,000.00
|
Class
I-A-3 Pass-Through Rate
|
February
25, 2037
|
|
Class
I-A-4
|
$ 111,610,000.00
|
Class
I-A-4 Pass-Through Rate
|
February
25, 2037
|
|
Class
I-M-1
|
$
15,865,000.00
|
Class
I-M-1 Pass-Through Rate
|
February
25, 2037
|
|
Class
I-M-2
|
$
9,308,000.00
|
Class
I-M-2 Pass-Through Rate
|
February
25, 2037
|
|
Class
I-M-3
|
$
5,500,000.00
|
Class
I-M-3 Pass-Through Rate
|
February
25, 2037
|
|
Class
I-X Interest
|
$
669.72
|
Class
I-X Pass-Through Rate
|
February
25, 2037
|
|
Class
I-P Interest
|
$
100.00
|
N/A(3)
|
February
25, 2037
|
|
Class
I-IO Interest
|
N/A(4)
|
(5)
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in February 2037 has been designated as the
“latest
possible maturity date” for each Class of Certificates.
|
|
(2)
|
The
Class I-X Interest will not accrue interest on its Certificate Principal
Balance, but will accrue interest at the Class I-X Pass-Through Rate
on
the Certificate Notional Balance of the Class I-X Interest outstanding
from time to time which shall equal the aggregate of the Uncertificated
Principal Balances of the REMIC IB Regular Interests (other than
REMIC IB Regular Interest LTI-IP).
|
|
(3)
|
The
Class I-P Interest will not be entitled to distributions in respect
of
interest.
|
|
(4)
|
For
federal income tax purposes, the Class I-IO Interest will not have
an
Uncertificated Principal Balance, but will have a notional amount
equal to
the Uncertificated Notional Amount of REMIC IB Regular
Interest LTI-I-IO.
|
|
(5)
|
For
federal income tax purposes, the Class IO Interest will not have
a
Pass-Through Rate, but will be entitled to 100% of the amounts distributed
on REMIC IB Regular Interest
LTI-I-IO.
|
REMIC
ID
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class I-X Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC ID”. The Class R-1D Interest will represent the sole
class of “residual interests” in REMIC ID for purposes of the REMIC Provisions.
The following table irrevocably sets forth the Class designation, Pass-Through
Rate and Initial Certificate Principal Balance for each Class of Certificates
that represents one or more of the “regular interests” in REMIC ID created
hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Class
I-X
|
$ 669.72
|
(2)
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in in February 2037 has been designated as
the
“latest possible maturity date” for the Class I-X
Certificates.
|
|
(2)
|
The
Class I-X Certificates will be entitled to 100% of amounts distributed
on
the Class I-X Interest.
|
REMIC
IE
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class I-P Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC IE”. The Class R-1E Interest will represent the sole class
of “residual interests” in REMIC 1E for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC IE created
hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Class
I-P
|
$ 100
|
(2)
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in in February 2037 has been designated as
the
“latest possible maturity date” for the Class I-P
Certificates.
|
|
(2)
|
The
Class I-P Certificates will be entitled to 100% of amounts distributed
on
the Class P Interest.
|
REMIC
IF
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class I-IO Interest as a REMIC
for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC IF”. The Class R-1F Interest will represent the sole class
of “residual interests” in REMIC IF for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC IF created
hereunder:
|
Class
Designation
|
Initial
Certificate
Notional
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Swap-IO
|
(2)
|
(3)
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in in February 2037 has been designated as
the
“latest possible maturity date” for REMIC IF Regular Interest
Swap-IO.
|
|
(2)
|
REMIC
IF Regular Interest Swap-IO will have not a Certificate Notional
Balance
but will be entitled to 100% of amounts distributed on the Class
I-IO
Interest.
|
|
(3)
|
REMIC
IF Regular Interest Swap-IO will be entitled to 100% of amounts
distributed on the Class I-IO Interest.
|
REMIC
IIA
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Group II Mortgage Loans and certain
other related assets as set forth in the definition of REMIC IIA subject to
this
Agreement (exclusive of the Basis Risk Shortfall Reserve Fund and, for the
avoidance of doubt, the Supplemental Interest Trust and the Group II Swap
Agreement) as a REMIC for federal income tax purposes, and such segregated
pool
of assets will be designated as “REMIC IIA”. The Class R-2A Interest will
represent the sole Class of “residual interests” in REMIC IIA for purposes of
the REMIC Provisions.
The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
IIA Pass-Through Rate, the initial Uncertificated Principal Balance, and for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC IIA Regular Interests.
None of the REMIC IIA Regular Interests will be certificated.
|
Designation
|
Uncertificated
REMIC IIIA
Pass-Through
Rate
|
Initial
Certificate
Principal
Balance
|
Assumed
Final
Maturity
Date(1)
|
|
|
I
|
(2)
|
$
|
813,204.24
|
February
25, 2037
|
|
I-1-A
|
(2)
|
$
|
2,027,096.98
|
February
25, 2037
|
|
I-1-B
|
(2)
|
$
|
2,027,096.98
|
February
25, 2037
|
|
I-2-A
|
(2)
|
$
|
1,987,361.78
|
February
25, 2037
|
|
I-2-B
|
(2)
|
$
|
1,987,361.78
|
February
25, 2037
|
|
I-3-A
|
(2)
|
$
|
1,911,027.49
|
February
25, 2037
|
|
I-3-B
|
(2)
|
$
|
1,911,027.49
|
February
25, 2037
|
|
I-4-A
|
(2)
|
$
|
1,911,575.26
|
February
25, 2037
|
|
I-4-B
|
(2)
|
$
|
1,911,575.26
|
February
25, 2037
|
|
I-5-A
|
(2)
|
$
|
1,764,201.85
|
February
25, 2037
|
|
I-5-B
|
(2)
|
$
|
1,764,201.85
|
February
25, 2037
|
|
I-6-A
|
(2)
|
$
|
1,696,439.11
|
February
25, 2037
|
|
I-6-B
|
(2)
|
$
|
1,696,439.11
|
February
25, 2037
|
|
I-7-A
|
(2)
|
$
|
1,631,279.12
|
February
25, 2037
|
|
I-7-B
|
(2)
|
$
|
1,631,279.12
|
February
25, 2037
|
|
I-8-A
|
(2)
|
$
|
1,568,621.92
|
February
25, 2037
|
|
I-8-B
|
(2)
|
$
|
1,568,621.92
|
February
25, 2037
|
|
I-9-A
|
(2)
|
$
|
1,508,371.37
|
February
25, 2037
|
|
I-9-B
|
(2)
|
$
|
1,508,371.37
|
February
25, 2037
|
|
I-10-A
|
(2)
|
$
|
1,450,435.03
|
February
25, 2037
|
|
I-10-B
|
(2)
|
$
|
1,450,435.03
|
February
25, 2037
|
|
I-11-A
|
(2)
|
$
|
1,394,724.03
|
February
25, 2037
|
|
I-11-B
|
(2)
|
$
|
1,394,724.03
|
February
25, 2037
|
|
I-12-A
|
(2)
|
$
|
1,341,152.87
|
February
25, 2037
|
|
I-12-B
|
(2)
|
$
|
1,341,152.87
|
February
25, 2037
|
|
I-13-A
|
(2)
|
$
|
1,289,639.38
|
February
25, 2037
|
|
I-13-B
|
(2)
|
$
|
1,289,639.38
|
February
25, 2037
|
|
I-14-A
|
(2)
|
$
|
1,240,104.51
|
February
25, 2037
|
|
I-14-B
|
(2)
|
$
|
1,240,104.51
|
February
25, 2037
|
|
I-15-A
|
(2)
|
$
|
1,192,472.27
|
February
25, 2037
|
|
I-15-B
|
(2)
|
$
|
1,192,472.27
|
February
25, 2037
|
|
I-16-A
|
(2)
|
$
|
1,146,669.58
|
February
25, 2037
|
|
I-16-B
|
(2)
|
$
|
1,146,669.58
|
February
25, 2037
|
|
I-17-A
|
(2)
|
$
|
1,102,626.16
|
February
25, 2037
|
|
I-17-B
|
(2)
|
$
|
1,102,626.16
|
February
25, 2037
|
|
I-18-A
|
(2)
|
$
|
1,060,274.44
|
February
25, 2037
|
|
I-18-B
|
(2)
|
$
|
1,060,274.44
|
February
25, 2037
|
|
I-19-A
|
(2)
|
$
|
1,019,549.45
|
February
25, 2037
|
|
I-19-B
|
(2)
|
$
|
1,019,549.45
|
February
25, 2037
|
|
I-20-A
|
(2)
|
$
|
980,388.70
|
February
25, 2037
|
|
I-20-B
|
(2)
|
$
|
980,388.70
|
February
25, 2037
|
|
I-21-A
|
(2)
|
$
|
2,277,447.76
|
February
25, 2037
|
|
I-21-B
|
(2)
|
$
|
2,277,447.76
|
February
25, 2037
|
|
I-22-A
|
(2)
|
$
|
967,629.98
|
February
25, 2037
|
|
I-22-B
|
(2)
|
$
|
967,629.98
|
February
25, 2037
|
|
I-23-A
|
(2)
|
$
|
818,089.12
|
February
25, 2037
|
|
I-23-B
|
(2)
|
$
|
818,089.12
|
February
25, 2037
|
|
I-24-A
|
(2)
|
$
|
786,666.43
|
February
25, 2037
|
|
I-24-B
|
(2)
|
$
|
786,666.43
|
February
25, 2037
|
|
I-25-A
|
(2)
|
$
|
756,450.69
|
February
25, 2037
|
|
I-25-B
|
(2)
|
$
|
756,450.69
|
February
25, 2037
|
|
I-26-A
|
(2)
|
$
|
727,395.52
|
February
25, 2037
|
|
I-26-B
|
(2)
|
$
|
727,395.52
|
February
25, 2037
|
|
I-27-A
|
(2)
|
$
|
699,456.36
|
February
25, 2037
|
|
I-27-B
|
(2)
|
$
|
699,456.36
|
February
25, 2037
|
|
I-28-A
|
(2)
|
$
|
672,590.34
|
February
25, 2037
|
|
I-28-B
|
(2)
|
$
|
672,590.34
|
February
25, 2037
|
|
I-29-A
|
(2)
|
$
|
646,756.24
|
February
25, 2037
|
|
I-29-B
|
(2)
|
$
|
646,756.24
|
February
25, 2037
|
|
I-30-A
|
(2)
|
$
|
621,914.42
|
February
25, 2037
|
|
I-30-B
|
(2)
|
$
|
621,914.42
|
February
25, 2037
|
|
I-31-A
|
(2)
|
$
|
598,026.78
|
February
25, 2037
|
|
I-31-B
|
(2)
|
$
|
598,026.78
|
February
25, 2037
|
|
I-32-A
|
(2)
|
$
|
575,056.65
|
February
25, 2037
|
|
I-32-B
|
(2)
|
$
|
575,056.65
|
February
25, 2037
|
|
I-33-A
|
(2)
|
$
|
1,545,599.97
|
February
25, 2037
|
|
I-33-B
|
(2)
|
$
|
1,545,599.97
|
February
25, 2037
|
|
I-34-A
|
(2)
|
$
|
705,438.29
|
February
25, 2037
|
|
I-34-B
|
(2)
|
$
|
705,438.29
|
February
25, 2037
|
|
I-35-A
|
(2)
|
$
|
466,506.74
|
February
25, 2037
|
|
I-35-B
|
(2)
|
$
|
466,506.74
|
February
25, 2037
|
|
I-36-A
|
(2)
|
$
|
448,588.28
|
February
25, 2037
|
|
I-36-B
|
(2)
|
$
|
448,588.28
|
February
25, 2037
|
|
I-37-A
|
(2)
|
$
|
431,358.07
|
February
25, 2037
|
|
I-37-B
|
(2)
|
$
|
431,358.07
|
February
25, 2037
|
|
I-38-A
|
(2)
|
$
|
414,789.67
|
February
25, 2037
|
|
I-38-B
|
(2)
|
$
|
414,789.67
|
February
25, 2037
|
|
I-39-A
|
(2)
|
$
|
398,857.65
|
February
25, 2037
|
|
I-39-B
|
(2)
|
$
|
398,857.65
|
February
25, 2037
|
|
I-40-A
|
(2)
|
$
|
383,537.59
|
February
25, 2037
|
|
I-40-B
|
(2)
|
$
|
383,537.59
|
February
25, 2037
|
|
I-41-A
|
(2)
|
$
|
368,805.96
|
February
25, 2037
|
|
I-41-B
|
(2)
|
$
|
368,805.96
|
February
25, 2037
|
|
I-42-A
|
(2)
|
$
|
354,640.18
|
February
25, 2037
|
|
I-42-B
|
(2)
|
$
|
354,640.18
|
February
25, 2037
|
|
I-43-A
|
(2)
|
$
|
341,018.50
|
February
25, 2037
|
|
I-43-B
|
(2)
|
$
|
341,018.50
|
February
25, 2037
|
|
I-44-A
|
(2)
|
$
|
327,920.02
|
February
25, 2037
|
|
I-44-B
|
(2)
|
$
|
327,920.02
|
February
25, 2037
|
|
I-45-A
|
(2)
|
$
|
315,324.66
|
February
25, 2037
|
|
I-45-B
|
(2)
|
$
|
315,324.66
|
February
25, 2037
|
|
I-46-A
|
(2)
|
$
|
303,213.09
|
February
25, 2037
|
|
I-46-B
|
(2)
|
$
|
303,213.09
|
February
25, 2037
|
|
I-47-A
|
(2)
|
$
|
291,566.71
|
February
25, 2037
|
|
I-47-B
|
(2)
|
$
|
291,566.71
|
February
25, 2037
|
|
I-48-A
|
(2)
|
$
|
280,367.68
|
February
25, 2037
|
|
I-48-B
|
(2)
|
$
|
280,367.68
|
February
25, 2037
|
|
I-49-A
|
(2)
|
$
|
269,598.79
|
February
25, 2037
|
|
I-49-B
|
(2)
|
$
|
269,598.79
|
February
25, 2037
|
|
I-50-A
|
(2)
|
$
|
259,243.54
|
February
25, 2037
|
|
I-50-B
|
(2)
|
$
|
259,243.54
|
February
25, 2037
|
|
I-51-A
|
(2)
|
$
|
249,286.03
|
February
25, 2037
|
|
I-51-B
|
(2)
|
$
|
249,286.03
|
February
25, 2037
|
|
I-52-A
|
(2)
|
$
|
239,710.99
|
February
25, 2037
|
|
I-52-B
|
(2)
|
$
|
239,710.99
|
February
25, 2037
|
|
I-53-A
|
(2)
|
$
|
230,503.73
|
February
25, 2037
|
|
I-53-B
|
(2)
|
$
|
230,503.73
|
February
25, 2037
|
|
I-54-A
|
(2)
|
$
|
221,650.11
|
February
25, 2037
|
|
I-54-B
|
(2)
|
$
|
221,650.11
|
February
25, 2037
|
|
I-55-A
|
(2)
|
$
|
213,136.56
|
February
25, 2037
|
|
I-55-B
|
(2)
|
$
|
213,136.56
|
February
25, 2037
|
|
I-56-A
|
(2)
|
$
|
204,950.01
|
February
25, 2037
|
|
I-56-B
|
(2)
|
$
|
204,950.01
|
February
25, 2037
|
|
I-57-A
|
(2)
|
$
|
197,077.91
|
February
25, 2037
|
|
I-57-B
|
(2)
|
$
|
197,077.91
|
February
25, 2037
|
|
I-58-A
|
(2)
|
$
|
4,560,328.41
|
February
25, 2037
|
|
I-58-B
|
(2)
|
$
|
4,560,328.41
|
February
25, 2037
|
|
I-59-A
|
(2)
|
$
|
14,346.60
|
February
25, 2037
|
|
I-59-B
|
(2)
|
$
|
14,346.60
|
February
25, 2037
|
|
I-60-A
|
(2)
|
$
|
359,166.92
|
February
25, 2037
|
|
I-60-B
|
(2)
|
$
|
359,166.92
|
February
25, 2037
|
|
II
|
(2)
|
$
|
3,690,323.56
|
February
25, 2037
|
|
II-1-A
|
(2)
|
$
|
9,198,972.95
|
February
25, 2037
|
|
II-1-B
|
(2)
|
$
|
9,198,972.95
|
February
25, 2037
|
|
II-2-A
|
(2)
|
$
|
9,018,654.46
|
February
25, 2037
|
|
II-2-B
|
(2)
|
$
|
9,018,654.46
|
February
25, 2037
|
|
II-3-A
|
(2)
|
$
|
8,672,249.21
|
February
25, 2037
|
|
II-3-B
|
(2)
|
$
|
8,672,249.21
|
February
25, 2037
|
|
II-4-A
|
(2)
|
$
|
8,674,734.98
|
February
25, 2037
|
|
II-4-B
|
(2)
|
$
|
8,674,734.98
|
February
25, 2037
|
|
II-5-A
|
(2)
|
$
|
8,005,953.97
|
February
25, 2037
|
|
II-5-B
|
(2)
|
$
|
8,005,953.97
|
February
25, 2037
|
|
II-6-A
|
(2)
|
$
|
7,698,446.40
|
February
25, 2037
|
|
II-6-B
|
(2)
|
$
|
7,698,446.40
|
February
25, 2037
|
|
II-7-A
|
(2)
|
$
|
7,402,750.15
|
February
25, 2037
|
|
II-7-B
|
(2)
|
$
|
7,402,750.15
|
February
25, 2037
|
|
II-8-A
|
(2)
|
$
|
7,118,411.55
|
February
25, 2037
|
|
II-8-B
|
(2)
|
$
|
7,118,411.55
|
February
25, 2037
|
|
II-9-A
|
(2)
|
$
|
6,844,994.36
|
February
25, 2037
|
|
II-9-B
|
(2)
|
$
|
6,844,994.36
|
February
25, 2037
|
|
II-10-A
|
(2)
|
$
|
6,582,079.09
|
February
25, 2037
|
|
II-10-B
|
(2)
|
$
|
6,582,079.09
|
February
25, 2037
|
|
II-11-A
|
(2)
|
$
|
6,329,262.35
|
February
25, 2037
|
|
II-11-B
|
(2)
|
$
|
6,329,262.35
|
February
25, 2037
|
|
II-12-A
|
(2)
|
$
|
6,086,156.27
|
February
25, 2037
|
|
II-12-B
|
(2)
|
$
|
6,086,156.27
|
February
25, 2037
|
|
II-13-A
|
(2)
|
$
|
5,852,387.86
|
February
25, 2037
|
|
II-13-B
|
(2)
|
$
|
5,852,387.86
|
February
25, 2037
|
|
II-14-A
|
(2)
|
$
|
5,627,598.46
|
February
25, 2037
|
|
II-14-B
|
(2)
|
$
|
5,627,598.46
|
February
25, 2037
|
|
II-15-A
|
(2)
|
$
|
5,411,443.19
|
February
25, 2037
|
|
II-15-B
|
(2)
|
$
|
5,411,443.19
|
February
25, 2037
|
|
II-16-A
|
(2)
|
$
|
5,203,590.41
|
February
25, 2037
|
|
II-16-B
|
(2)
|
$
|
5,203,590.41
|
February
25, 2037
|
|
II-17-A
|
(2)
|
$
|
5,003,721.23
|
February
25, 2037
|
|
II-17-B
|
(2)
|
$
|
5,003,721.23
|
February
25, 2037
|
|
II-18-A
|
(2)
|
$
|
4,811,529.00
|
February
25, 2037
|
|
II-18-B
|
(2)
|
$
|
4,811,529.00
|
February
25, 2037
|
|
II-19-A
|
(2)
|
$
|
4,626,718.84
|
February
25, 2037
|
|
II-19-B
|
(2)
|
$
|
4,626,718.84
|
February
25, 2037
|
|
II-20-A
|
(2)
|
$
|
4,449,007.22
|
February
25, 2037
|
|
II-20-B
|
(2)
|
$
|
4,449,007.22
|
February
25, 2037
|
|
II-21-A
|
(2)
|
$
|
10,335,065.64
|
February
25, 2037
|
|
II-21-B
|
(2)
|
$
|
10,335,065.64
|
February
25, 2037
|
|
II-22-A
|
(2)
|
$
|
4,391,108.10
|
February
25, 2037
|
|
II-22-B
|
(2)
|
$
|
4,391,108.10
|
February
25, 2037
|
|
II-23-A
|
(2)
|
$
|
3,712,491.20
|
February
25, 2037
|
|
II-23-B
|
(2)
|
$
|
3,712,491.20
|
February
25, 2037
|
|
II-24-A
|
(2)
|
$
|
3,569,894.94
|
February
25, 2037
|
|
II-24-B
|
(2)
|
$
|
3,569,894.94
|
February
25, 2037
|
|
II-25-A
|
(2)
|
$
|
3,432,775.77
|
February
25, 2037
|
|
II-25-B
|
(2)
|
$
|
3,432,775.77
|
February
25, 2037
|
|
II-26-A
|
(2)
|
$
|
3,300,923.33
|
February
25, 2037
|
|
II-26-B
|
(2)
|
$
|
3,300,923.33
|
February
25, 2037
|
|
II-27-A
|
(2)
|
$
|
3,174,135.33
|
February
25, 2037
|
|
II-27-B
|
(2)
|
$
|
3,174,135.33
|
February
25, 2037
|
|
II-28-A
|
(2)
|
$
|
3,052,217.23
|
February
25, 2037
|
|
II-28-B
|
(2)
|
$
|
3,052,217.23
|
February
25, 2037
|
|
II-29-A
|
(2)
|
$
|
2,934,982.00
|
February
25, 2037
|
|
II-29-B
|
(2)
|
$
|
2,934,982.00
|
February
25, 2037
|
|
II-30-A
|
(2)
|
$
|
2,822,249.75
|
February
25, 2037
|
|
II-30-B
|
(2)
|
$
|
2,822,249.75
|
February
25, 2037
|
|
II-31-A
|
(2)
|
$
|
2,713,847.53
|
February
25, 2037
|
|
II-31-B
|
(2)
|
$
|
2,713,847.53
|
February
25, 2037
|
|
II-32-A
|
(2)
|
$
|
2,609,609.03
|
February
25, 2037
|
|
II-32-B
|
(2)
|
$
|
2,609,609.03
|
February
25, 2037
|
|
II-33-A
|
(2)
|
$
|
7,013,937.86
|
February
25, 2037
|
|
II-33-B
|
(2)
|
$
|
7,013,937.86
|
February
25, 2037
|
|
II-34-A
|
(2)
|
$
|
3,201,281.36
|
February
25, 2037
|
|
II-34-B
|
(2)
|
$
|
3,201,281.36
|
February
25, 2037
|
|
II-35-A
|
(2)
|
$
|
2,117,009.17
|
February
25, 2037
|
|
II-35-B
|
(2)
|
$
|
2,117,009.17
|
February
25, 2037
|
|
II-36-A
|
(2)
|
$
|
2,035,695.14
|
February
25, 2037
|
|
II-36-B
|
(2)
|
$
|
2,035,695.14
|
February
25, 2037
|
|
II-37-A
|
(2)
|
$
|
1,957,504.38
|
February
25, 2037
|
|
II-37-B
|
(2)
|
$
|
1,957,504.38
|
February
25, 2037
|
|
II-38-A
|
(2)
|
$
|
1,882,316.91
|
February
25, 2037
|
|
II-38-B
|
(2)
|
$
|
1,882,316.91
|
February
25, 2037
|
|
II-39-A
|
(2)
|
$
|
1,810,017.38
|
February
25, 2037
|
|
II-39-B
|
(2)
|
$
|
1,810,017.38
|
February
25, 2037
|
|
II-40-A
|
(2)
|
$
|
1,740,494.86
|
February
25, 2037
|
|
II-40-B
|
(2)
|
$
|
1,740,494.86
|
February
25, 2037
|
|
II-41-A
|
(2)
|
$
|
1,673,642.70
|
February
25, 2037
|
|
II-41-B
|
(2)
|
$
|
1,673,642.70
|
February
25, 2037
|
|
II-42-A
|
(2)
|
$
|
1,609,358.32
|
February
25, 2037
|
|
II-42-B
|
(2)
|
$
|
1,609,358.32
|
February
25, 2037
|
|
II-43-A
|
(2)
|
$
|
1,547,543.09
|
February
25, 2037
|
|
II-43-B
|
(2)
|
$
|
1,547,543.09
|
February
25, 2037
|
|
II-44-A
|
(2)
|
$
|
1,488,102.18
|
February
25, 2037
|
|
II-44-B
|
(2)
|
$
|
1,488,102.18
|
February
25, 2037
|
|
II-45-A
|
(2)
|
$
|
1,430,944.38
|
February
25, 2037
|
|
I-45-B
|
(2)
|
$
|
1,430,944.38
|
February
25, 2037
|
|
II-46-A
|
(2)
|
$
|
1,375,982.00
|
February
25, 2037
|
|
II-46-B
|
(2)
|
$
|
1,375,982.00
|
February
25, 2037
|
|
II-47-A
|
(2)
|
$
|
1,323,130.73
|
February
25, 2037
|
|
II-47-B
|
(2)
|
$
|
1,323,130.73
|
February
25, 2037
|
|
II-48-A
|
(2)
|
$
|
1,272,309.46
|
February
25, 2037
|
|
II-48-B
|
(2)
|
$
|
1,272,309.46
|
February
25, 2037
|
|
II-49-A
|
(2)
|
$
|
1,223,440.24
|
February
25, 2037
|
|
II-49-B
|
(2)
|
$
|
1,223,440.24
|
February
25, 2037
|
|
II-50-A
|
(2)
|
$
|
1,176,448.07
|
February
25, 2037
|
|
II-50-B
|
(2)
|
$
|
1,176,448.07
|
February
25, 2037
|
|
II-51-A
|
(2)
|
$
|
1,131,260.86
|
February
25, 2037
|
|
II-51-B
|
(2)
|
$
|
1,131,260.86
|
February
25, 2037
|
|
II-52-A
|
(2)
|
$
|
1,087,809.29
|
February
25, 2037
|
|
II-52-B
|
(2)
|
$
|
1,087,809.29
|
February
25, 2037
|
|
II-53-A
|
(2)
|
$
|
1,046,026.68
|
February
25, 2037
|
|
II-53-B
|
(2)
|
$
|
1,046,026.68
|
February
25, 2037
|
|
II-54-A
|
(2)
|
$
|
1,005,848.95
|
February
25, 2037
|
|
II-54-B
|
(2)
|
$
|
1,005,848.95
|
February
25, 2037
|
|
II-55-A
|
(2)
|
$
|
967,214.43
|
February
25, 2037
|
|
II-55-B
|
(2)
|
$
|
967,214.43
|
February
25, 2037
|
|
II-56-A
|
(2)
|
$
|
930,063.86
|
February
25, 2037
|
|
II-56-B
|
(2)
|
$
|
930,063.86
|
February
25, 2037
|
|
II-57-A
|
(2)
|
$
|
894,340.24
|
February
25, 2037
|
|
II-57-B
|
(2)
|
$
|
894,340.24
|
February
25, 2037
|
|
II-58-A
|
(2)
|
$
|
20,694,785.74
|
February
25, 2037
|
|
II-58-B
|
(2)
|
$
|
20,694,785.74
|
February
25, 2037
|
|
II-59-A
|
(2)
|
$
|
65,104.93
|
February
25, 2037
|
|
II-59-B
|
(2)
|
$
|
65,104.93
|
February
25, 2037
|
|
II-60-A
|
(2)
|
$
|
1,629,900.70
|
February
25, 2037
|
|
II-60-B
|
(2)
|
$
|
1,629,900.70
|
February
25, 2037
|
|
II-P
|
(3)
|
$
|
100.00
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month following the maturity date for
the
Group II Mortgage Loan with the latest maturity date has been designated
as the “latest possible maturity date” for each REMIC IIA Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC IIA
Pass-Through Rate” herein.
|
|
(3)
|
The
REMIC IIA Regular Interest LTII-P will not be entitled to distributions
of
interest.
|
REMIC
IIB
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the REMIC IIA Regular Interests as
a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as “REMIC IIB.” The Class R-2B Interest will represent the sole
Class of “residual interests” in REMIC IIB for purposes of the REMIC Provisions.
The following table irrevocably sets forth the designation, the Uncertificated
REMIC IIB Pass-Through Rate, the Initial Uncertificated Principal Balance,
and
for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii),
the “latest possible maturity date” for each of the REMIC IIB Regular Interests.
None of the REMIC IIB Regular Interests will be certificated.
|
Designation
|
Initial
Uncertificated
Principal
Balance
|
Uncertificated
REMIC
IIB
Pass-Through
Rate
|
Assumed
Final Distribution Date(1)
|
|
LTII-AA
|
$ 294,018,878.62
|
(2)
|
February
25, 2037
|
|
LTII-IA
|
$
502,740.00
|
(2)
|
February
25, 2037
|
|
LTII-IIA1A
|
$
1,350,000.00
|
(2)
|
February
25, 2037
|
|
LTII-IIA1B
|
$
150,000.00
|
(2)
|
February
25, 2037
|
|
LTII-IIA2
|
$ 464,200.00
|
(2)
|
February
25, 2037
|
|
LTII-IIA3
|
$ 144,085.00
|
(2)
|
February
25, 2037
|
|
LTII-IIA4A
|
$ 155,835.00
|
(2)
|
February
25, 2037
|
|
LTII-IIA4B
|
$
17,315.00
|
(2)
|
February
25, 2037
|
|
LTII-IIM1
|
$ 40,500.00
|
(2)
|
February
25, 2037
|
|
LTII-IIM2
|
$ 39,000.00
|
(2)
|
February
25, 2037
|
|
LTII-IIM3
|
$ 25,500.00
|
(2)
|
February
25, 2037
|
|
LTII-IIM4
|
$ 19,500.00
|
(2)
|
February
25, 2037
|
|
LTII-IIM5
|
$ 18,000.00
|
(2)
|
February
25, 2037
|
|
LTII-IIM6
|
$ 16,500.00
|
(2)
|
February
25, 2037
|
|
LTII-IIM7
|
$ 15,000.00
|
(2)
|
February
25, 2037
|
|
LTII-IIM8
|
$ 19,500.00
|
(2)
|
February
25, 2037
|
|
LTII-ZZ
|
$
3,022,710.28
|
(2)
|
February
25, 2037
|
|
LTII-1SUB
|
$
780.12
|
(2)
|
February
25, 2037
|
|
LTII-1GRP
|
$ 10,834.93
|
(2)
|
February
25, 2037
|
|
LTII-2SUB
|
$
3,540.23
|
(2)
|
February
25, 2037
|
|
LTII-2GRP
|
$
49,168.93
|
(2)
|
February
25, 2037
|
|
LTII-XX
|
$ 299,954,939.70
|
(2)
|
February
25, 2037
|
|
LTII-II-IO
|
(4)
|
(2)
|
February
25, 2037
|
|
LTII-IIP
|
$
100.00
|
(3)
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month following the maturity date for
the
Group II Mortgage Loan with the latest maturity date has been designated
as the “latest possible maturity date” for each REMIC IIB Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC IIB
Pass-Through Rate” herein.
|
|
(3)
|
REMIC
IIB Regular Interest LTII-IIP will not be entitled to distributions
of
interest.
|
|
(4)
|
REMIC
IIB Regular Interest LTII-II-IO will not have an Uncertificated Principal
Balance, but will accrue interest on its Uncertificated Notional
Amount,
as defined herein.
|
REMIC
IIC
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the REMIC IIB Regular Interests as
a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as “REMIC IIC”. The Class R-2C Interest will represent the sole
Class of “residual interests” in REMIC IIC for purposes of the REMIC Provisions.
The following table irrevocably sets forth the Class designation, Pass-Through
Rate and Initial Certificate Principal Balance for each Class of Certificates
that represents one or more of the “regular interests” in REMIC IIC created
hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final Distribution Date(1)
|
|
Class
II-1-A
|
$ 100,548,000.00
|
Class
II-1-A Pass Through Rate
|
February
25, 2037
|
|
Class
II-2-A-1A
|
$ 270,000,000.00
|
Class
II-2-A-1A Pass Through Rate
|
February
25, 2037
|
|
Class
II-2-A-1B
|
$
30,000,000.00
|
Class
II-2-A-1B Pass Through Rate
|
February
25, 2037
|
|
Class
II-2-A-2
|
$
92,840,000.00
|
Class
II-2-A-2 Pass Through Rate
|
February
25, 2037
|
|
Class
II-2-A-3
|
$
28,817,000.00
|
Class
II-2-A-3 Pass Through Rate
|
February
25, 2037
|
|
Class
II-2-A-4A
|
$
31,167,000.00
|
Class
II-2-A-4A Pass Through Rate
|
February
25, 2037
|
|
Class
II-2-A-4B
|
$
3,463,000.00
|
Class
II-2-A-4b Pass Through Rate
|
February
25, 2037
|
|
Class
II-M-1
|
$
8,100,000.00
|
Class
II-M-1 Pass Through Rate
|
February
25, 2037
|
|
Class
II-M-2
|
$
7,800,000.00
|
Class
II-M-2 Pass Through Rate
|
February
25, 2037
|
|
Class
II-M-3
|
$
5,100,000.00
|
Class
II-M-3 Pass Through Rate
|
February
25, 2037
|
|
Class
II-M-4
|
$
3,900,000.00
|
Class
II-M-4 Pass Through Rate
|
February
25, 2037
|
|
Class
II-M-5
|
$
3,600,000.00
|
Class
II-M-5 Pass Through Rate
|
February
25, 2037
|
|
Class
II-M-6
|
$
3,300,000.00
|
Class
II-M-6 Pass Through Rate
|
February
25, 2037
|
|
Class
II-M-7
|
$
3,000,000.00
|
Class
II-M-7 Pass Through Rate
|
February
25, 2037
|
|
Class
II-M-8
|
$
3,900,000.00
|
Class
II-M-8 Pass Through Rate
|
February
25, 2037
|
|
Class
II-X(2)
|
$
4,503,527.80
|
Class
II-X Pass Through Rate
|
February
25, 2037
|
|
Class
II-P
|
$
100.00
|
N/A(3)
|
February
25, 2037
|
|
Class
II-IO Interest
|
(4)
|
(5)
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in Feburary
2037 with
the latest maturity date has been designated as the “latest possible
maturity date” for each Class of Certificates.
|
|
(2)
|
The
Class II-X Certificates will not accrue interest on their Certificate
Principal Balance, but will accrue interest at the Class II-X Pass-Through
Rate on the Certificate Notional Balance of the Class II-X Certificates
outstanding from time to time which shall equal the aggregate of
the
Uncertificated Principal Balances of the REMIC IIB Regular Interests
(other than REMIC IIB Regular Interest LTII-P).
|
|
(3)
|
The
Class II-P Certificates will not be entitled to distributions of
interest.
|
|
(4)
|
For
federal income tax purposes, the Class II-IO Interest will not have
a
Pass-Through Rate, but will be entitled to 100% of the amounts distributed
on REMIC IIB Regular Interest LTII-II-IO.
|
|
(5)
|
For
federal income tax purposes, the Class II-IO Interest will not have
an
Uncertificated Principal Balance, but will have a notional amount
equal to
the Uncertificated Notional Amount of REMIC IIB Regular
Interest
LTII-II-IO.
|
REMIC
IID
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class II-X Interest as a REMIC
for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC IID”. The Class R-2D Interest will represent the sole class
of “residual interests” in REMIC IID for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC IID created
hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Class
II-X
|
$ 4,503,527.80
|
(2)
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in Feburary 2037 has been designated as the
“latest
possible maturity date” for the Class II-X
Certificates.
|
|
(2)
|
The
Class II-X Certificates will be entitled to 100% of amounts distributed
on
the Class II-X Interest.
|
REMIC
IIE
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class II-P Interest as a REMIC
for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC IIE”. The Class R-2E Interest will represent the sole class
of “residual interests” in REMIC IIE for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC IIE created
hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Class
II-P
|
$ 100
|
(2)
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in Feburary 2037 has been designated as the
“latest
possible maturity date” for the Class II-P
Certificates.
|
|
(2)
|
The
Class II-P Certificates will be entitled to 100% of amounts distributed
on
the Class II-P Interest.
|
REMIC
IIF
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class II-IO Interest as a REMIC
for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC IIF”. The Class R-2F interest will represent the sole class
of “residual interests” in REMIC IIF for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC IIF created
hereunder:
|
Class
Designation
|
Initial
Certificate
Notional
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Swap-IO
|
(2)
|
(3)
|
February
25, 2037
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in Feburary 2037 has been designated as the
“latest
possible maturity date” for REMIC IF Regular Interest
Swap-IO.
|
|
(2)
|
REMIC
IIF Regular Interest Swap-IO will have not a Certificate Notional
Balance
but will be entitled to 100% of amounts distributed on the Class
IO
Interest.
|
|
(3)
|
REMIC
IIF Regular Interest Swap-IO will be entitled to 100% of amounts
distributed on the Class II- IO Interest.
|
In
consideration of the mutual agreements herein contained, the Depositor, GMACM,
the Master Servicer, the Securities Administrator, the Sponsor and the Trustee
agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
In
addition to those terms defined in Section 1.02, whenever used in this
Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Accepted
Master Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
master servicing practices of prudent mortgage servicing institutions that
master service mortgage loans of the same type and quality as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located, to the
extent applicable to the Master Servicer (except in its capacity as successor
to
a Servicer), or (y) as provided in Section 3.01 hereof, but in no event
below the standard set forth in clause (x).
Accepted
Servicing Practices:
As
defined in Section 3.01.
Account:
Either
the Distribution Account or the Custodial Accounts.
Accrual
Period:
With
respect to the Group I Senior Certificates (other than the Class I-A-4
Certificates), the Group I Mezzanine Certificates (other than the Class I-M-3
Certificates), the Class I-X Certificates, the Class II-X Certificates and
the
Residual Certificates, the calendar month immediately preceding such
Distribution Date. With respect to the Class I-A-4 Certificates, the Class
I-M-3
Certificates, the Group II Senior Certificates and Group II Mezzanine
Certificates and any Distribution Date, the period commencing on the immediately
preceding Distribution Date (or with respect to the first Accrual Period, the
Closing Date) and ending on the day immediately preceding the related
Distribution Date. All calculations of interest on the Group I Senior
Certificates (other than the Class I-A-4 Certificates), the Group I Subordinate
Certificates (other than the Class I-M-3 Certificates), the Class I-X
Certificates and Class II-X Certificates will be based on a 360-day year
consisting of twelve 30-day months. All calculations of interest on the Class
I-A-4 Certificates, Class I-M-3 Certificates, Group II Senior Certificates
and
Group II Mezzanine Certificates will be made based on a 360-day year and the
actual number of days elapsed in the related Accrual Period.
Additional
Disclosure Notification:
Has the
meaning set forth in Section 5.16 of this Agreement.
Additional
Form 10-D Disclosure:
Has the
meaning set forth in Section 5.16(a) of this Agreement.
Additional
Form 10-K Disclosure:
Has the
meaning set forth in Section 5.16(d) of this Agreement.
Adjustment
Date:
With
respect to each Group II Mortgage Loan, the first day of the month in which
the
Mortgage Rate of such Group II Mortgage Loan, as applicable changes pursuant
to
the related Mortgage Note. The first Adjustment Date following the Cut-Off
Date
as Group II Mortgage Loan is set forth in the Loan Schedule.
Advance:
An
advance of delinquent payments of principal or interest in respect of a Mortgage
Loan required to be made by the Servicer or by the Master Servicer pursuant
to
Section 5.01 or pursuant to the related Servicing Agreement.
Advance
Facility:
As
defined in Section 5.01(b)(i).
Advance
Facility Notice:
As
defined in Section 5.01(b)(ii).
Advance
Financing Person:
As
defined in Section 5.01(b)(i).
Advance
Reimbursement Amount:
As
defined in Section 5.01(b)(ii).
Aggregate
Loan Balance:
With
respect to the Group II Mortgage Loans and any Distribution Date, the aggregate
of the Stated Principal Balances of the Group II Mortgage Loans as of the last
day of the related Due Period.
Aggregate
Loan Group Balance:
With
respect to any Distribution Date and either the Group II-1 Mortgage Loans or
the
Group II-2 Mortgage Loans, will be equal to the aggregate of the Stated
Principal Balances of the Group II Mortgage Loans in the related loan group
as
of the last day of the related Due Period.
Agreement:
This
Pooling and Servicing Agreement and any and all amendments or supplements hereto
made in accordance with the terms herein.
Amount
Held for Future Distribution:
As to
any Distribution Date and each Loan Group, the aggregate amount held in the
related Custodial Account at the close of business on the immediately preceding
Determination Date on account of (i) all Scheduled Payments or portions thereof
received in respect of the Mortgage Loans in the related Loan Group due after
the related Due Period and (ii) Principal Prepayments and Liquidation Proceeds
received in respect of the Mortgage Loans in the related Loan Group after the
last day of the related Prepayment Period.
Applied
Loss Amount:
With
respect to the Group II Senior Certificates and Group II Mezzanine Certificates
and any Distribution Date, the excess of the aggregate Certificate Principal
Balance of the Group II Senior Certificates and Group II Mezzanine Certificates
over the Aggregate Loan Balance of the Group II Mortgage Loans after giving
effect to all Realized Losses incurred with respect to the Group II Mortgage
Loans during the related Due Period and payments of principal to the Group
II
Senior Certificates and Group II Mezzanine Certificates on such Distribution
Date.
Appraised
Value:
With
respect to any Mortgage Loan originated in connection with a refinancing, the
appraised value of the Mortgaged Property based upon the appraisal made at
the
time of such refinancing or, with respect to any other Mortgage Loan, the lesser
of (x) the appraised value of the Mortgaged Property based upon the appraisal
made by a fee appraiser at the time of the origination of the Mortgage Loan,
and
(y) the sales price of the Mortgaged Property at the time of such
origination.
Assignment
Agreement:
Shall
mean the Assignment, Assumption and Recognition Agreement, dated as of January
1, 2007, among the Sponsor, the Depositor and Xxxxx Fargo Bank, pursuant to
which the Servicing Agreement was assigned to the Depositor, a copy of which
is
attached hereto as Exhibit Q.
Assumed
Final Distribution Date:
The
Distribution Date in February 2037.
Authorized
Servicer Representative:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the related Mortgage Loans whose name and facsimile signature
appear on a list of servicing officers furnished to the Trustee and the Master
Servicer by the Servicer on the Closing Date, as such list may from time to
time
be amended.
Available
Distribution Amount:
With
respect to Loan Group I, the sum of the Interest Remittance Amount with respect
to Loan Group I and Principal Funds with respect to Loan Group I, exclusive
of
amounts pursuant to Section 5.11(a). With respect to Loan Group II, the sum
of the Interest Remittance Amount with respect to Loan Group II and Principal
Remittance Amount with respect to Loan Group II, exclusive of amounts pursuant
to Section 5.11(b).
Balloon
Mortgage Loan:
A
Mortgage Loan that provides for the payment of the unamortized principal balance
of such Mortgage Loan in a single payment, that is substantially greater than
the preceding monthly payment at the maturity of such Mortgage
Loan.
Balloon
Payment:
A
payment of the unamortized principal balance of a Mortgage Loan in a single
payment, that is substantially greater than the preceding Monthly Payment at
the
maturity of such Mortgage Loan.
Bankruptcy
Code:
Title
11 of the United States Code.
Bankruptcy
Losses:
means
any Debt Service Reduction or Deficient Valuation.
Basis
Risk Shortfall Reserve Fund:
The
segregated non-interest bearing trust account created and maintained by the
Securities Administrator pursuant to Section 5.13 hereof.
Basis
Risk Shortfall:
With
respect to any Class of Group II Senior Certificates or Group II Mezzanine
Certificates and any Distribution Date, the sum of (i) the excess, if any,
of
the related Current Interest (calculated without regard to the Net Funds Cap)
over the related Current Interest (as it may have been limited by the applicable
Net Funds Cap) for the applicable Distribution Date; (ii) any amount described
in clause (i) remaining unpaid from prior Distribution Dates; and (iii) interest
on the amount in clause (ii) for the related Accrual Period calculated on the
basis of the least of (x) One Month LIBOR plus the applicable Certificate
Margin, (y) the related Maximum Interest Rate and (z) the Cap Rate.
Book-Entry
Certificates:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in
Section 6.06). As of the Closing Date, each Class of Publicly Offered
Certificates constitutes a Class of Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a day on which banking
institutions in The City of New York, New York, the Commonwealth of
Pennsylvania, the State of Maryland, the city in which any Corporate Trust
Office of the Securities Administrator or the Trustee is located or the States
in which a Servicer’s servicing operations are located are authorized or
obligated by law or executive order to be closed.
Cap
Contracts:
Each of
the two interest rate Cap Contracts, dated as of January 31, 2007, between
the
Trustee and Cap Provider, including any schedule, confirmations, credit support
annex or other credit support document relating thereto, and attached hereto
as
Exhibit O.
Cap
Credit Support Annexes:
Each of
the two credit support annexes, dated as of January 31, 2007, between the
Trustee and the Cap Provider, each of which is annexed to and forms part of
the
related Cap Contract.
Cap
Provider:
The cap
provider under the Cap Contracts. Initially, the Cap Provider shall be HSBC
Bank
USA, National Association.
Cap
Rate:
With
respect to the Group II Senior Certificates and Group II Mezzanine Certificates,
11.00% per annum.
Carryforward
Interest:
With
respect to any Class of Group II Senior Certificates or Group II Mezzanine
Certificates and any Distribution Date, the sum of (i) the amount, if any,
by
which (x) the sum of (A) Current Interest for that Class of Certificates for
the
immediately preceding Distribution Date and (B) any unpaid Carryforward Interest
for such Class from previous Distribution Dates exceeds (y) the actual amount
distributed on such Class in respect of interest on the immediately preceding
Distribution Date and (ii) interest on such amount for the related Accrual
Period at the applicable Pass-Through Rate.
Certificate:
Any one
of the certificates of any Class executed and authenticated by the Securities
Administrator in substantially the forms attached hereto as Exhibits A-1 through
A-7.
Certificate
Margin:
With
respect to each Distribution Date on or prior to the first possible Optional
Termination Date, the Certificate Margins for the Class II-1-A, Class II-2-A-1A,
Class II-2-A-1B, Class II-2-A-2, Class II-2-A-3, Class II-2-A-4A, Class
II-2-A-4B, Class II-M-1, Class II-M-2, Class II-M-3, Class II-M-4, Class II-M-5,
Class II-M-6, Class II-M-7 and Class II-M-8 Certificates are 0.16%, 0.16%,
0.21%, 0.08%, 0.16%, 0.23%, 0.29%, 0.30%, 0.31%, 0.35%, 0.43%, 0.45%, 0.50%,
0.95%, and 2.00% per annum, respectively. With respect to each Distribution
Date
following the first possible Optional Termination Date with respect to the
Group
II Mortgage Loans, the Certificate Margin for each Class of Group II Senior
Certificates will be equal to twice the initial Certificate Margin for such
Class, and the Certificate Margin for each Class of Group II Mezzanine
Certificates will be equal to the lesser of (i) twice the initial Certificate
Margin for such Class and (ii) the initial Certificate Margin for such Class
plus 0.50%.
Certificate
Notional Balance:
With
respect to the Class I-X Interest and any Distribution Date, the Uncertificated
Principal Balance of the REMIC IB Regular Interests (other than
REMIC IB Regular Interest LTI-P and REMIC IB Regular Interest LTI-IO)
for such Distribution Date. The Class I-X Certificates will have a Certificate
Notional Balance equal to the Certificate Notional Balance of the Class I-X
Interest. As of the Closing Date, the Certificate Notional Balance of the Class
I-X Interest is equal to $423,073,669.72. With respect to the Class II-X
Interest and any Distribution Date, the Uncertificated Principal Balance of
the
REMIC IIB Regular Interests (other than REMIC IIB Regular Interest LTII-P and
REMIC IIB Regular Interest LTII-IO) for such Distribution Date. The Class II-X
Certificates will have a Certificate Notional Balance equal to the Certificate
Notional Balance of the Class II-X Interest. As of the Closing Date, the
Certificate Notional Balance of the Class II-X Interest is equal to
$600,038,527.80.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person that is the beneficial owner
of
such Book-Entry Certificate.
Certificate
Principal Balance:
As to
any Class of Group I Certificates (other than any Class I-X, Class I-R, Class
I-R-X) and as of any Distribution Date, the Initial Certificate Principal
Balance of such Certificate plus any Subsequent Recoveries added to the
Certificate Principal Balance of such Certificate pursuant to
Section 5.06(e) less the sum of (i) all amounts distributed with respect to
such Certificate in reduction of the Certificate Principal Balance thereof
on
previous Distribution Dates pursuant to Section 5.04, and (ii) with respect
to the Group I Mezzanine Certificates, any reductions in the Certificate
Principal Balance of such Certificate deemed to have occurred in connection
with
the allocations of Realized Losses incurred on the Group I Mortgage Loans,
if
any. The initial aggregate Certificate Principal Balance of the Class I-P
Certificates is equal to $100. With respect to the Class I-X Certificates and
any date of determination, the excess, if any, of (i) the then aggregate Stated
Principal Balance of the Group I Mortgage Loans over (ii) the then aggregate
Certificate Principal Balance of the Group I Senior Certificates and Group
I
Mezzanine Certificates.
As
to any
Group II Senior Certificate or Group II Mezzanine Certificate and as of any
Distribution Date, the Initial Certificate Principal Balance of such Certificate
less (i) the sum of (a) all amounts distributed with respect to such Certificate
in reduction of the Certificate Principal Balance thereof on previous
Distribution Dates pursuant to Section 5.05 and (b) with respect to any
Class
of
Group II Senior
Certificates or any Class of Group II Mezzanine Certificates, any reductions
in
the Certificate Principal Balance of such Certificate deemed to have occurred
in
connection with the allocations of Realized Losses on the Group II Mortgage
Loans, if any, plus (ii) any Subsequent Recoveries added to the Certificate
Principal Balance of any such Certificate pursuant to Section 5.07(c), in
each case up to the amount of Applied Loss Amounts but only to the extent that
any such Applied Loss Amount has not been paid to any Class of Group II
Certificates as a Deferred Amount. The initial Certificate Principal Balance
of
the Class II-P Certificates is equal to $100. With respect to the Class II-X
Certificates and any date of determination, the excess, if any, of (i) the
then
Aggregate Loan Balance over (ii) the then aggregate Certificate Principal
Balance of the Group II Senior Certificates and Group II Mezzanine
Certificates.
References
herein to the Certificate Principal Balance of a Class of Certificates shall
mean the Certificate Principal Balances of all Certificates in such Class.
Certificate
Register:
The
register maintained pursuant to Section 6.02.
Certificateholder
or Holder:
The
person in whose name a Certificate is registered in the Certificate Register
(initially, Cede & Co., as nominee for the Depository, in the case of any
Book-Entry Certificates).
Certification
Parties:
Has the
meaning set forth in Section 3.18 of this Agreement.
Certifying
Person:
Has the
meaning set forth in Section 3.18 of this Agreement.
Class:
All
Certificates bearing the same Class designation as set forth in
Section 6.01.
Class
I-A-1 Certificate:
Any
Certificate designated as a “Class I-A-1 Certificate” on the face thereof, in
the form of Exhibit
A-1
hereto,
representing the right to the Percentage Interest of distributions provided
for
the Class I-A-1 Certificates as set forth herein and evidencing (i) a REMIC
Regular Interest in REMIC IC, (ii) the right to receive the related Net WAC
Rate
Carryover Amounts and (iii) the obligation to pay any Class I-IO Distribution
Amount.
Class
I-A-1 Pass-Through Rate:
With
respect to any Distribution Date, the lesser of (i)(A) on or prior to the first
possible Optional Termination Date with respect to the Group I Mortgage Loans,
6.058% per annum or (B) after the first possible Optional Termination Date
with
respect to the Group I Mortgage Loans, 6.558% per annum and (ii) the related
Net
WAC Pass-Through Rate.
Class
I-A-2 Certificate:
Any
Certificate designated as a “Class I-A-2 Certificate” on the face thereof, in
the form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class I-A-2 Certificates as set forth herein and evidencing (i) a REMIC
Regular Interest in REMIC IC, (ii) the right to receive the related Net WAC
Rate
Carryover Amounts and (iii) the obligation to pay any Class I-IO Distribution
Amount.
Class
I-A-2 Pass-Through Rate:
With
respect to any Distribution Date, the lesser of (i)(A) on or prior to the first
possible Optional Termination Date with respect to the Group I Mortgage Loans,
5.870% per annum or (B) after the first possible Optional Termination Date
with
respect to the Group I Mortgage Loans, 6.370% per annum and (ii) the related
Net
WAC Pass-Through Rate;
Class
I-A-3 Certificate:
Any
Certificate designated as a “Class I-A-3 Certificate” on the face thereof, in
the form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class I-A-3 Certificates as set forth herein and evidencing (i) a REMIC
Regular Interest in REMIC IC, (ii) the right to receive the related Net WAC
Rate
Carryover Amounts and (iii) the obligation to pay any Class I-IO Distribution
Amount.
Class
I-A-3 Pass-Through Rate:
With
respect to any Distribution Date, the
lesser of (i)(A) on or prior to the first possible Optional Termination Date
with respect to the Group I Mortgage Loans, 5.992% per annum or (B) after the
first possible Optional Termination Date with respect to the Group I Mortgage
Loans, 6.492% per annum and (ii) the related Net WAC Pass-Through
Rate.
Class
I-A-4 Cap Contract:
Shall
mean the cap contract between the Trustee and the Cap Provider, for the benefit
of the Holders of the Class I-A-4 Certificates.
Class
I-A-4 Certificate:
Any
Certificate designated as a “Class I-A-4 Certificate” on the face thereof, in
the form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class I-A-4 Certificates as set forth herein and evidencing (i) a REMIC
Regular Interest in REMIC IC, (ii) the right to receive the related Net WAC
Rate
Carryover Amounts and (iii) the obligation to pay any Class I-IO Distribution
Amount.
Class
I-A-4 Pass-Through Rate:
With
respect to any Distribution Date will equal the sum of One-Month LIBOR plus
(A)
on or prior to the first possible Optional Termination Date with respect to
the
Group I Mortgage Loans, plus 0.040% per annum, (B) after the first possible
Optional Termination Date with respect to the Group I Mortgage Loans, plus
0.80%, in each case subject to a cap equal to the related Net WAC Pass-Through
Rate for such Distribution Date.
Class
I-M-1 Certificate:
Any
Certificate designated as a “Class I-M-1 Certificate” on the face thereof, in
the form of Exhibit
A-3
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class I-M-1 Certificates as set forth herein and evidencing (i) a REMIC
Regular Interest in REMIC IC, (ii) the right to receive the related Net WAC
Rate
Carryover Amounts and (iii) the obligation to pay any Class I-IO Distribution
Amount.
Class
I-M-1 Pass-Through Rate:
With
respect to any Distribution Date, the lesser of (i)(A) on or prior to the first
possible Optional Termination Date with respect to the Group I Mortgage Loans,
6.435% per annum or (B) after the first possible Optional Termination Date
with
respect to the Group I Mortgage Loans, 6.935% per annum and (ii) the related
Net
WAC Pass-Through Rate.
Class
I-M-1 Principal Distribution Amount:
With
respect to any Distribution Date (i) prior to the Group I Stepdown Date or
on or
after the Group I Stepdown Date if a Group I Trigger Event is in effect for
that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount or
(ii)
on or after the Group I Stepdown Date if a Group I Trigger Event is not in
effect for that Distribution Date, the amount, if any, by which (x) the sum
of
(i) the aggregate Certificate Principal Balance of the Group I Senior
Certificates, after giving effect to payments on such Distribution Date and
(ii)
the Certificate Principal Balance of the Class I-M-1 Certificates immediately
prior to such Distribution Date exceeds (y) the lesser of (A) the product of
(i)
approximately 90.30% and (ii) the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date and (B) the amount, if any,
by
which (i) the aggregate Stated Principal Balance of the Group I Mortgage Loans
for such Distribution Date exceeds (ii) 0.35% of the aggregate Stated Principal
Balance of the Group I Mortgage Loans as of the Cut-off Date.
Class
I-M-2 Certificate:
Any
Certificate designated as a “Class I-M-2 Certificate” on the face thereof, in
the form of Exhibit
A-3
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class I-M-2 Certificates as set forth herein and evidencing (i) a REMIC
Regular Interest in REMIC IC, (ii) the right to receive the related Net WAC
Rate
Carryover Amounts and (iii) the obligation to pay any Class I-IO Distribution
Amount.
Class
I-M-2 Pass-Through Rate:
With
respect to any Distribution Date, the lesser of (i)(A) on or prior to the first
possible Optional Termination Date with respect to the Group I Mortgage Loans,
6.350% per annum or (B) after the first possible Optional Termination Date
with
respect to the Group I Mortgage Loans, 6.850% per annum and (ii) the related
Net
WAC Pass-Through Rate.
Class
I-M-2 Principal Distribution Amount:
With
respect to any Distribution Date (i) prior to the Group I Stepdown Date or
on or
after the Group I Stepdown Date if a Group I Trigger Event is in effect for
that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount and
the
Class I-M-1 Principal Distribution Amount or (ii) on or after the Group I
Stepdown Date if a Group I Trigger Event is not in effect for that Distribution
Date, the amount, if any, by which (x) the sum of (i) the aggregate Certificate
Principal Balance of the Group I Senior Certificates and Class I-M-1
Certificates, in each case, after giving effect to payments on such Distribution
Date and (ii) the Certificate Principal Balance of the Class I-M-2 Certificates
immediately prior to such Distribution Date exceeds (y) the lesser of (A) the
product of (i) approximately 94.70% and (ii) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date and (B) the
amount, if any, by which (i) the aggregate principal balance of the Group I
Mortgage Loans for such Distribution Date exceeds (ii) 0.35% of the aggregate
Stated Principal Balance of the Group I Mortgage Loans as of the Cut-off
Date.
Class
I-M-3 Cap Contract:
Shall
mean the cap contract between the Trustee and the Cap Provider, for the benefit
of the Holders of the Class I-M-3 Certificates.
Class
I-M-3 Certificate:
Any
Certificate designated as a “Class I-M-3 Certificate” on the face thereof, in
the form of Exhibit
A-3
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class I-M-3 Certificates as set forth herein and evidencing (i) a REMIC
Regular Interest in REMIC IC, (ii) the right to receive the related Net WAC
Rate
Carryover Amounts and (iii) the obligation to pay any Class I-IO Distribution
Amount.
Class
I-M-3 Pass-Through Rate:
With
respect to any Distribution Date will equal the sum of One-Month LIBOR plus
(A)
on or prior to the first possible Optional Termination Date with respect to
the
Group I Mortgage Loans, plus 1.750% per annum, (B) after the first possible
Optional Termination Date with respect to the Group I Mortgage Loans, plus
2.625%, in each case subject to a cap equal to the related Net WAC Pass-Through
Rate for such Distribution Date.
Class
I-M-3 Principal Distribution Amount:
With
respect to any Distribution Date (i) prior to the Group I Stepdown Date or
on or
after the Group I Stepdown Date if a Group I Trigger Event is in effect for
that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount, the
Class I-M-1 Principal Distribution Amount and the Class I-M-2 Principal
Distribution Amount or (ii) on or after the Group I Stepdown Date if a Group
I
Trigger Event is not in effect for that Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Certificate Principal
Balances of the Group
I
Senior
Certificates, Class I-M-1 Certificates and Class I-M-2 Certificates, in each
case, after giving effect to payments on such Distribution Date and (ii) the
Certificate Principal Balance of the Class I-M-3 Certificates immediately prior
to such Distribution Date exceeds (y) the lesser of (A) the product of (i)
approximately 97.30% and (ii) the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date and (B) the amount, if any,
by
which (i) the aggregate Stated Principal Balance of the Group I Mortgage Loans
for such Distribution Date exceeds (ii) 0.35% of the aggregate Stated Principal
Balance of the Group I Mortgage Loans as of the Cut-off Date.
Class
I-P Certificate:
Any
Certificate designated as a “Class I-P Certificate” on the face thereof, in the
form of Exhibit A-5 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class I-P Certificates as set forth herein and
evidencing a Regular Interest in REMIC IE.
Class
I-P Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
Holders of the Class I-P Certificates, evidencing a Regular Interest in REMIC
IC
for purposes of the REMIC Provisions.
Class
I-P Certificate Account:
The
Eligible Account established and maintained by the Securities Administrator
pursuant to Section 5.11(a).
Class
I-R Certificate:
Any
Certificate designated a “Class I-R Certificate” on the face thereof, in
substantially the form set forth in Exhibit
A-7
hereto,
evidencing the Class R-1A Interest, Class R-1B Interest and Class R-1C
Interest.
Class
I-R-X Certificate:
Any
Certificate designated a “Class I-R-X Certificate” on the face thereof, in
substantially the form set forth in Exhibit
A-7
hereto,
evidencing the Class R-1D Interest, Class R-1E Interest and Class R-1F
Interest.
Class
I-X Certificate:
Any
Certificate designated as a “Class I-X Certificate” on the face thereof, in the
form of Exhibit
A-6
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class I-X Certificates herein and evidencing (i) a REMIC Regular Interest
in
REMIC ID, (ii) the obligation to pay Net WAC Rate Carryover Amounts and (iii)
the obligation to pay any Class I-IO Distribution Amount.
Class
I-X Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the Excess Cap Payment, (ii)
the Interest Distribution Amount for the Class I-X Certificates for such
Distribution Date and (iii) any Overcollateralization Reduction Amount for
such
Distribution Date remaining after payments pursuant to items 1 though 4 of
clause Third
of
Section 5.04(a); provided, however that on and after the Distribution Date
on which the aggregate Certificate Principal Balance of the Group I
Certificates has been reduced to zero, the Class I-X Distribution Amount shall
include the Group I Overcollateralization Amount.
Class
I-X Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
Holders of the Class I-X Certificates, evidencing a Regular Interest in REMIC
IC
for purposes of the REMIC Provisions.
Class
I-X Pass-Through Rate:
On any
Distribution Date, a per annum rate equal to the percentage equivalent of a
fraction, the numerator of which is the sum of the amounts calculated pursuant
to clauses (A) through (I) below, and the denominator of which is the aggregate
of the Uncertificated Principal Balances of the REMIC IB Regular Interests
(other than REMIC IB Regular Interest LTI-IP, REMIC IB Regular
Interest LTI-SC, REMIC IB Regular Interest LTI-NSC, REMIC IB Regular
Interest LTI-XX and REMIC IB Regular Interest LTI-IO). For purposes of
calculating the Pass-Through Rate for the Class I-X Interest, the numerator
is
equal to the sum of the following components:
(A)
the
Uncertificated REMIC IB Pass-Through Rate for REMIC IB Regular
Interest LTI-AA minus the Group I Marker Rate, applied to an amount equal to
the
Uncertificated Principal Balance of REMIC IB Regular Interest
LTI-AA;
(B)
the
Uncertificated REMIC IB Pass-Through Rate for REMIC IB Regular
Interest LTI-IA1 minus the Group I Marker Rate, applied to an amount equal
to
the Uncertificated Principal Balance of REMIC IB Regular Interest
LTI-IA1;
(C)
the
Uncertificated REMIC IB Pass-Through Rate for REMIC IB Regular
Interest LTI-IA2 minus the Group I Marker Rate, applied to an amount equal
to
the Uncertificated Principal Balance of REMIC IB Regular Interest
LTI-IA2;
(D)
the
Uncertificated REMIC IB Pass-Through Rate for REMIC IB Regular
Interest LTI-IA3 minus the Group I Marker Rate, applied to an amount equal
to
the Uncertificated Principal Balance of REMIC IB Regular Interest
LTI-IA3;
(E)
the
Uncertificated REMIC IB Pass-Through Rate for REMIC IB Regular
Interest LTI-IA4 minus the Group I Marker Rate, applied to an amount equal
to
the Uncertificated Principal Balance of REMIC IB Regular Interest
LTI-IA4;
(F)
the
Uncertificated REMIC IB Pass-Through Rate for REMIC IB Regular
Interest LTI-IM1 minus the Group I Marker Rate, applied to an amount equal
to
the Uncertificated Principal Balance of REMIC IB Regular Interest
LTI-IM1;
(G)
the
Uncertificated REMIC IB Pass-Through Rate for REMIC IB Regular
Interest LTI-IM2 minus the Group I Marker Rate, applied to an amount equal
to
the Uncertificated Principal Balance of REMIC IB Regular Interest
LTI-IM2;
(H)
the
Uncertificated REMIC IB Pass-Through Rate for REMIC IB Regular
Interest LTI-IM3 minus the Group I Marker Rate, applied to an amount equal
to
the Uncertificated Principal Balance of REMIC IB Regular Interest LTI-IM3;
and
(I) the
Uncertificated REMIC IB Pass-Through Rate for REMIC IB Regular
Interest LTI-ZZ minus the Group I Marker Rate, applied to an amount equal to
the
Uncertificated Principal Balance of REMIC IB Regular Interest
LTI-ZZ.
Class
I-IO Distribution Amount:
As
defined in Section 5.14 hereof. For
purposes of clarity, the Class I-IO Distribution Amount for any Distribution
Date shall equal the amount payable to the Supplemental Interest Trust on such
Distribution Date in excess of the amount payable on the Class I-IO Interest
on
such Distribution Date, all as further provided in Section 5.15
hereof.
Class
I-IO Interest:
An
uncertificated interest in the Trust Fund held by the Trustee, evidencing a
REMIC Regular Interest in REMIC IC for purposes of the REMIC
Provisions.
Class
II-1-A Certificate:
Any
Certificate designated as a “Class II-1-A Certificate” on the face thereof, in
the form of Exhibit A-2 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-1-A Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-1-A Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.16% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the initial related
Certificate Margin, (ii) the related Net Funds Cap, (iii) the related
Maximum
Interest Rate and (iv) the Cap Rate.
Class
II-2-A-1 Allocation Percentage:
With
respect to any Distribution Date, a fraction, expressed as a percentage, the
numerator of which is the sum of the Certificate Principal Balances of the
Class
II-2-A-1A Certificates and the Class II-2-A-1B Certificates and the denominator
of which is the aggregate Certificate Principal Balance of all of the Group
II-2
Senior Certificates, in each case immediately prior to that Distribution
Date.
Class
II-2-A-1A Certificate:
Any
Certificate designated as a “Class II-2-A-1A Certificate” on the face thereof,
in the form of Exhibit A-2 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-2-A-1A Certificates as
set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-2-A-1A Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.16% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the initial related
Certificate Margin, (ii) the related Net Funds Cap, (iii) the related Maximum
Interest Rate and (iv) the Cap Rate.
Class
II-2-A-1B Certificate:
Any
Certificate designated as a “Class II-2-A-1B Certificate” on the face thereof,
in the form of Exhibit A-2 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-2-A-1B Certificates as
set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-2-A-1B Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.21% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the initial related
Certificate Margin, (ii) the related Net Funds Cap, (iii) the related Maximum
Interest Rate and (iv) the Cap Rate.
Class
II-2-A-2 Certificate:
Any
Certificate designated as a “Class II-2-A-2 Certificate” on the face thereof, in
the form of Exhibit A-2 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-2-A-2 Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-2-A-2 Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.08% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the initial related
Certificate Margin, (ii) the related Net Funds Cap, (iii) the related Maximum
Interest Rate and (iv) the Cap Rate.
Class
II-2-A-3 Certificate:
Any
Certificate designated as a “Class II-2-A-3 Certificate” on the face thereof, in
the form of Exhibit A-2 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-2-A-3 Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-2-A-3 Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.16% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the initial related
Certificate Margin, (ii) the related Net Funds Cap, (iii) the related Maximum
Interest Rate and (iv) the Cap Rate.
Class
II-2-A-4A Certificate:
Any
Certificate designated as a “Class II-2-A-4A Certificate” on the face thereof,
in the form of Exhibit A-2 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-2-A-4A Certificates as
set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-2-A-4A Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.23% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the initial related
Certificate Margin, (ii) the related Net Funds Cap, (iii) the related Maximum
Interest Rate and (iv) the Cap Rate.
Class
II-2-A-4B Certificate:
Any
Certificate designated as a “Class II-2-A-4B Certificate” on the face thereof,
in the form of Exhibit A-3 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-2-A-1B Certificates as
set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-2-A-4B Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.29% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the initial related
Certificate Margin, (ii) the related Net Funds Cap, (iii) the related Maximum
Interest Rate and (iv) the Cap Rate.
Class
II-M-1 Certificate:
Any
Certificate designated as a “Class II-M-1 Certificate” on the face thereof, in
the form of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-M-1 Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-M-1 Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.30% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the related Certificate
Margin, (ii) the related Net Funds Cap, (iii) the related Maximum Interest
Rate
and (iv) the Cap Rate.
Class
II-M-1 Principal Payment Amount:
with
respect to any Distribution Date on or after the Group II Stepdown Date and
as
long as a Group II Trigger Event is not in effect with respect to such
Distribution Date, will be the amount, if any, by which (x) the sum of (i)
the
Certificate Principal Balances of the Group II Senior Certificates, after giving
effect to payments on such Distribution Date and (ii) the Certificate Principal
Balance of the Class II-M-1 Certificates immediately prior to such Distribution
Date exceeds (y) the lesser of (A) the product of (i) approximately 88.30%
and
(ii) the Aggregate Loan Balance for such Distribution Date (after giving effect
to scheduled payments of principal due during the related Due Period to the
extent received or advanced, unscheduled collections of principal received
during the related Prepayment Period and after reduction for Realized Losses
on
the Group II Mortgage Loans incurred during the related Due Period) and (B)
the
amount, if any, by which (i) the Aggregate Loan Balance for such Distribution
Date (after giving effect to scheduled payments of principal due during the
related Due Period to the extent received or advanced, unscheduled collections
of principal received during the related Prepayment Period and after reduction
for Realized Losses on the Group II Mortgage Loans incurred during the related
Due Period) exceeds (ii) 0.35% of the Aggregate Loan Balance as of the Cut-off
Date.
Class
II-M-2 Certificate:
Any
Certificate designated as a “Class II-M-2 Certificate” on the face thereof, in
the form of Exhibit A-6 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-M-2 Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-M-2 Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.31% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the related Certificate
Margin, (ii) the Net Funds Cap, (iii) the related Maximum Interest Rate and
(iv)
the Cap Rate.
Class
II-M-2 Principal Payment Amount:
With
respect to any Distribution Date on or after the Group II Stepdown Date and
as
long as a Group II Trigger Event is not in effect with respect to such
Distribution Date, will be the amount, if any, by which (x) the sum of (i)
the
Certificate Principal Balances of the Group II Senior Certificates and Class
II-M-1 Certificates, in each case, after giving effect to payments on such
Distribution Date and (ii) the Certificate Principal Balance of the Class II-M-2
Certificates immediately prior to such Distribution Date exceeds (y) the lesser
of (A) the product of (i) approximately 90.90% and (ii) the Aggregate Loan
Balance for such Distribution Date (after giving effect to scheduled payments
of
principal due during the related Due Period to the extent received or advanced,
unscheduled collections of principal received during the related Prepayment
Period and after reduction for Realized Losses on the Group II Mortgage Loans
incurred during the related Due Period) and (B) the amount, if any, by which
(i)
the Aggregate Loan Balance for such Distribution Date (after giving effect
to
scheduled payments of principal due during the related Due Period to the extent
received or advanced, unscheduled collections of principal received during
the
related Prepayment Period and after reduction for Realized Losses on the Group
II Mortgage Loans incurred during the related Due Period) exceeds (ii) 0.35%
of
the Aggregate Loan Balance as of the Cut-off Date.
Class
II-M-3 Certificate:
Any
Certificate designated as a “Class II-M-3 Certificate” on the face thereof, in
the form of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-M-3 Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-M-3 Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.35% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the related Certificate
Margin, (ii) the related Net Funds Cap, (iii) the related Maximum Interest
Rate
and (iv) the Cap Rate.
Class
II-M-3 Principal Payment Amount:
With
respect to any Distribution Date on or after the Group II Stepdown Date and
as
long as a Group II Trigger Event is not in effect with respect to such
Distribution Date, will be the amount, if any, by which (x) the sum of (i)
the
Certificate Principal Balances of the Group II Senior Certificates, Class II-M-1
Certificates and Class II-M-2 Certificates, in each case, after giving effect
to
payments on such Distribution Date and (ii) the Certificate Principal Balance
of
the Class II-M-3 Certificates immediately prior to such Distribution Date
exceeds (y) the lesser of (A) the product of (i) approximately 92.60% and (ii)
the Aggregate Loan Balance for such Distribution Date (after giving effect
to
scheduled payments of principal due during the related Due Period to the extent
received or advanced, unscheduled collections of principal received during
the
related Prepayment Period and after reduction for Realized Losses on the Group
II Mortgage Loans incurred during the related Due Period) and (B) the amount,
if
any, by which (i) the Aggregate Loan Balance for such Distribution Date (after
giving effect to scheduled payments of principal due during the related Due
Period to the extent received or advanced, unscheduled collections of principal
received during the related Prepayment Period and after reduction for Realized
Losses on the Group II Mortgage Loans incurred during the related Due Period)
exceeds (ii) 0.35% of the Aggregate Loan Balance as of the Cut-off
Date.
Class
II-M-4 Certificate:
Any
Certificate designated as a “Class II-M-4 Certificate” on the face thereof, in
the form of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-M-4 Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-M-4 Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.43% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the related Certificate
Margin, (ii) the related Net Funds Cap, (iii) the related Maximum Interest
Rate
and (iv) the Cap Rate.
Class
II-M-4 Principal Payment Amount:
With
respect to any Distribution Date on or after the Group II Stepdown Date and
as
long as a Group II Trigger Event is not in effect with respect to such
Distribution Date, will be the amount, if any, by which (x) the sum of (i)
the
Certificate Principal Balances of the Group II Senior Certificates, Class
II-M-1, Class II-M-2 and Class II-M-3 Certificates, in each case, after giving
effect to payments on such Distribution Date and (ii) the Certificate Principal
Balance of the Class II-M-4 Certificates immediately prior to such Distribution
Date exceeds (y) the lesser of (A) the product of (i) approximately 93.90%
and
(ii) the Aggregate Loan Balance for such Distribution Date (after giving effect
to scheduled payments of principal due during the related Due Period to the
extent received or advanced, unscheduled collections of principal received
during the related Prepayment Period and after reduction for Realized Losses
on
the Group II Mortgage Loans incurred during the related Due Period) and (B)
the
amount, if any, by which (i) the Aggregate Loan Balance for such Distribution
Date (after giving effect to scheduled payments of principal due during the
related Due Period to the extent received or advanced, unscheduled collections
of principal received during the related Prepayment Period and after reduction
for Realized Losses on the Group II Mortgage Loans incurred during the related
Due Period) exceeds (ii) 0.35% of the Aggregate Loan Balance as of the Cut-off
Date.
Class
II-M-5 Certificate:
Any
Certificate designated as a “Class II-M-5 Certificate” on the face thereof, in
the form of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-M-5 Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-M-5 Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.45% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the related Certificate
Margin, (ii) the related Net Funds Cap, (iii) the related Maximum Interest
Rate
and (iv) the Cap Rate.
Class
II-M-5 Principal Payment Amount:
with
respect to any Distribution Date on or after the Group II Stepdown Date and
as
long as a Group II Trigger Event is not in effect with respect to such
Distribution Date, will be the amount, if any, by which (x) the sum of (i)
the
Certificate Principal Balances of the Group II Senior Certificates, Class
II-M-1, Class II-M-2, Class II-M-3 and Class II-M-4 Certificates, in each case,
after giving effect to payments on such Distribution Date and (ii) the
Certificate Principal Balance of the Class II-M-5 Certificates immediately
prior
to such Distribution Date exceeds (y) the lesser of (A) the product of (i)
approximately 95.10% and (ii) the Aggregate Loan Balance for such Distribution
Date (after giving effect to scheduled payments of principal due during the
related Due Period to the extent received or advanced, unscheduled collections
of principal received during the related Prepayment Period and after reduction
for Realized Losses on the Group II Mortgage Loans incurred during the related
Due Period) and (B) the amount, if any, by which (i) the Aggregate Loan Balance
for such Distribution Date (after giving effect to scheduled payments of
principal due during the related Due Period to the extent received or advanced,
unscheduled collections of principal received during the related Prepayment
Period and after reduction for Realized Losses on the Group II Mortgage Loans
incurred during the related Due Period) exceeds (ii) 0.35% of the Aggregate
Loan
Balance as of the Cut-off Date.
Class
II-M-6 Certificate:
Any
Certificate designated as a “Class II-M-6 Certificate” on the face thereof, in
the form of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-M-6 Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-M-6 Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.50% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the related Certificate
Margin, (ii) the related Net Funds Cap, (iii) the related Maximum Interest
Rate
and (iv) the Cap Rate.
Class
II-M-6 Principal Payment Amount:
With
respect to any Distribution Date on or after the Group II Stepdown Date and
as
long as a Group II Trigger Event is not in effect with respect to such
Distribution Date, will be the amount, if any, by which (x) the sum of (i)
the
Certificate Principal Balances of the Group II Senior Certificates, Class
II-M-1, Class II-M-2, Class II-M-3, Class II-M-4 and Class II-M-5 Certificates,
in each case, after giving effect to payments on such Distribution Date and
(ii)
the Certificate Principal Balance of the Class II-M-6 Certificates immediately
prior to such Distribution Date exceeds (y) the lesser of (A) the product of
(i)
approximately 96.20% and (ii) the Aggregate Loan Balance for such Distribution
Date (after giving effect to scheduled payments of principal due during the
related Due Period to the extent received or advanced, unscheduled collections
of principal received during the related Prepayment Period and after reduction
for Realized Losses on the Group II Mortgage Loans incurred during the related
Due Period) and (B) the amount, if any, by which (i) the Aggregate Loan Balance
for such Distribution Date (after giving effect to scheduled payments of
principal due during the related Due Period to the extent received or advanced,
unscheduled collections of principal received during the related Prepayment
Period and after reduction for Realized Losses on the Group II Mortgage Loans
incurred during the related Due Period) exceeds (ii) 0.35% of the Aggregate
Loan
Balance as of the Cut-off Date.
Class
II-M-7 Certificate:
Any
Certificate designated as a “Class II-M-7 Certificate” on the face thereof, in
the form of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-M-7 Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-M-7 Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 0.95% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the related Certificate
Margin, (ii) the related Net Funds Cap, (iii) the related Maximum Interest
Rate
and (iv) the Cap Rate.
Class
II-M-7 Principal Payment Amount:
With
respect to any Distribution Date on or after the Group II Stepdown Date and
as
long as a Group II Trigger Event is not in effect with respect to such
Distribution Date, will be the amount, if any, by which (x) the sum of (i)
the
Certificate Principal Balances of the Group II Senior Certificates, Class
II-M-1, Class II-M-2, Class II-M-3, Class II-M-4, Class II-M-5 and Class II-M-6
Certificates, in each case, after giving effect to payments on such Distribution
Date and (ii) the Certificate Principal Balance of the Class II-M-7 Certificates
immediately prior to such Distribution Date exceeds (y) the lesser of (A) the
product of (i) approximately 97.20% and (ii) the Aggregate Loan Balance for
such
Distribution Date (after giving effect to scheduled payments of principal due
during the related Due Period to the extent received or advanced, unscheduled
collections of principal received during the related Prepayment Period and
after
reduction for Realized Losses on the Group II Mortgage Loans incurred during
the
related Due Period) and (B) the amount, if any, by which (i) the Aggregate
Loan
Balance for such Distribution Date (after giving effect to scheduled payments
of
principal due during the related Due Period to the extent received or advanced,
unscheduled collections of principal received during the related Prepayment
Period and after reduction for Realized Losses on the Group II Mortgage Loans
incurred during the related Due Period) exceeds (ii) 0.35% of the Aggregate
Loan
Balance as of the Cut-off Date.
Class
II-M-8 Certificate:
Any
Certificate designated as a “Class II-M-8 Certificate” on the face thereof, in
the form of Exhibit A-4 hereto, representing the right to its Percentage
Interest of distributions provided for the Class II-M-8 Certificates as set
forth herein and evidencing (i) a Regular Interest in REMIC IIC, (ii) the right
to receive the related Basis Risk Shortfall and (iii) the obligation to pay
any
Class II-IO Distribution Amount.
Class
II-M-8 Pass-Through Rate:
With
respect to each Distribution Date, a per annum rate equal to the least of (i)
the sum of One-Month LIBOR for that Distribution Date plus (A) on or prior
to
the first possible Optional Termination Date with respect to the Group II
Mortgage Loans, 2.00% or (B) after the first possible Optional Termination
Date
with respect to the Group II Mortgage Loans, two times the related Certificate
Margin, (ii) the related Net Funds Cap, (iii) the related Maximum Interest
Rate
and (iv) the Cap Rate.
Class
II-M-8 Principal Payment Amount:
With
respect to any Distribution Date on or after the Group II Stepdown Date and
as
long as a Group II Trigger Event is not in effect with respect to such
Distribution Date, will be the amount, if any, by which (x) the sum of (i)
the
Certificate Principal Balances of the Group II Senior Certificates, Class
II-M-1, Class II-M-2, Class II-M-3, Class II-M-4, Class II-M-5, Class II-M-6
and
Class II-M-7 Certificates, in each case, after giving effect to payments on
such
Distribution Date and (ii) the Certificate Principal Balance of the Class II-M-8
Certificates immediately prior to such Distribution Date exceeds (y) the lesser
of (A) the product of (i) approximately 98.50% and (ii) the Aggregate Loan
Balance for such Distribution Date (after giving effect to scheduled payments
of
principal due during the related Due Period to the extent received or advanced,
unscheduled collections of principal received during the related Prepayment
Period and after reduction for Realized Losses on the Group II Mortgage Loans
incurred during the related Due Period) and (B) the amount, if any, by which
(i)
the Aggregate Loan Balance for such Distribution Date (after giving effect
to
scheduled payments of principal due during the related Due Period to the extent
received or advanced, unscheduled collections of principal received during
the
related Prepayment Period and after reduction for Realized Losses on the Group
II Mortgage Loans incurred during the related Due Period) exceeds (ii) 0.35%
of
the Aggregate Loan Balance as of the Cut-off Date.
Class
II-P Certificate:
Any
Certificate designated as a “Class II-P Certificate” on the face thereof, in the
form of Exhibit A-5 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class II-P Certificates as set forth herein
and
evidencing a Regular Interest in REMIC IIE.
Class
II-P Certificate Account:
The
Eligible Account established and maintained by the Securities Administrator
pursuant to Section 5.11(b).
Class
II-R Certificate:
Any
Certificate designated as a “Class II-R” Certificate on the face thereof in the
form of Exhibit A-7 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class II-R Certificates as set forth herein
and
evidencing the Class R-2A Interest, Class R-2B Interest and Class R-2C
Interest.
Class
II-R-X Certificate:
Any
Certificate designated a “Class I-R-X Certificate” on the face thereof, in
substantially the form set forth in Exhibit
A-7
hereto,
evidencing the Class R-2D Interest, Class R-2E Interest and Class R-1F
Interest.
Class
II-X Certificate:
Any
Certificate designated as a “Class II-X Certificate” on the face thereof, in the
form of Exhibit A-5 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class II-X Certificates as set forth herein
and
evidencing (i) a Regular Interest in REMIC IID, (ii) the obligation to pay
Basis
Risk Shortfalls and (iii) the obligation to pay any Class II-IO Distribution
Amount.
Class
II-X Distribution Amount:
With
respect to any Distribution Date and the Class II-X Certificates, the sum of
(i)
the Current Interest and Carryforward Interest and (ii) any
Overcollateralization Release Amount for such Distribution Date remaining after
payments pursuant to items (1) though (20) of Section 5.05(a)(iii);
provided, however that on and after the Distribution Date on which the
Certificate Principal Balances of the Group II Senior Certificates and Mezzanine
Certificates have been reduced to zero, the Class II-X Distribution Amount
shall
include the Group II Overcollateralization Amount.
Class
II-X Pass-Through Rate:
On any
Distribution Date, a per annum rate equal to the percentage equivalent of a
fraction, the numerator of which is the sum of the amounts calculated pursuant
to clauses (A) through (Q) below, and the denominator of which is the aggregate
of the Uncertificated Principal Balances of REMIC IIB Regular Interest LTII-AA,
REMIC IIB Regular Interest LTII-IA1, REMIC IIB Regular Interest LTII-IIA1A,
REMIC IIB Regular Interest LTII-IIA1B, REMIC IIB Regular Interest LTII-IIA2,
REMIC IIB Regular Interest LTII-IIA3, REMIC IIB Regular Interest LTII-IIA4A,
REMIC IIB Regular Interest LTII-IIA4B, REMIC IIB Regular Interest LTII-IIM1,
REMIC IIB Regular Interest LTII-IIM2, REMIC IIB Regular Interest LTII-IIM3,
REMIC IIB Regular Interest LTII-IIM4, REMIC IIB Regular Interest LTII-IIM5,
REMIC IIB Regular Interest LTII-IIM6, REMIC IIB Regular Interest LTII-IIM7,
REMIC IIB Regular Interest LTII-IIM8, and REMIC IIB Regular Interest LTII-ZZ.
For purposes of calculating the Pass-Through Rate for the Class II-X
Interest, the numerator is equal to the sum of the following
components:
(A) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-AA minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-AA;
(B) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIA1A minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-IA1;
(C) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIA1A minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-IIA1A;
(D) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIA1B minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-IIA1B;
(E) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIA2 minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-IIA2;
(F) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIA3 minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest LTII-IIA3;
(G) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIA4A minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-IIA4A;
(H) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIA4B minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-IIA4B;
(I) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIM1 minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-IIM1;
(J) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIM2 minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-IIM2;
(K) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIM3 minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-IIM3;
(L) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIM4 minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest LTII-IIM4;
(M) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIM5 minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest
LTII-IIM5;
(N) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIM6 minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest LTII-IIM6;
(O) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIM7 minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest LTII-IIM7;
(P) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest
LTII-IIM8 minus the Group II Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest LTII-IIM8;
and
(Q) the
Uncertificated REMIC IIB Pass-Through Rate for REMIC IIB Regular Interest LTI-ZZ
minus the Group II Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC IIB Regular Interest LTI-ZZ.
Class
II-IO Distribution Amount:
As
defined in Section 5.14 hereof. For
purposes of clarity, the Class II-IO Distribution Amount for any Distribution
Date shall equal the amount payable to the Supplemental Interest Trust on such
Distribution Date in excess of the amount payable on the Class II-IO Interest
on
such Distribution Date, all as further provided in Section 5.15
hereof.
Class
II-IO Interest:
An
uncertificated interest in the Trust Fund held by the Trustee, evidencing a
REMIC Regular Interest in REMIC IIC for purposes of the REMIC
Provisions.
Cleanup
Call:
As
defined in Section 10.01.
Closing
Date:
January
31, 2007.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Commission:
Shall
mean the United States Securities and Exchange Commission.
Compensating
Interest:
With
respect to any Distribution Date and (i) GMAC Mortgage, LLC, an amount equal
to
the lesser of (a) the aggregate of the Prepayment Interest Shortfalls resulting
from prepayments in full on the Mortgage Loans serviced by it and received
during the portion of the Prepayment Period occurring from the 14th
day of
the month prior to the month in which the related Distribution Date occurs
and
ending on the last day of such month and (b) one half of the aggregate servicing
fee due GMAC Mortgage, LLC on the Mortgage Loans for such Distribution Date,
(ii) Xxxxx Fargo Bank an amount equal to the lesser of (a) the aggregate of
the
Prepayment Interest Shortfalls resulting from prepayments in full on the
Mortgage Loans serviced by it and received (I) with respect to the Mortgage
Loans originated and serviced by Xxxxx Fargo Bank, during the related Prepayment
Period and (II) with respect to the Mortgage Loans which were not originated
by
Xxxxx Fargo Bank but for which Xxxxx Fargo Bank purchased the servicing rights,
during the portion of the Prepayment Period occurring from the 14th
day of
the month prior to the month in which the related Distribution Date occurs
and
ending on the last day of such month and (b) the aggregate servicing fee due
Xxxxx Fargo Bank on the Mortgage Loans for such Distribution Date or (iii)
the
master servicer, any Prepayment Interest Shortfall required to be funded by
the
related Servicer pursuant to clause (i) or (ii), as applicable, of this
definition and not funded by such Servicer, up to the aggregate Master Servicing
Compensation (exclusive of the portion of such compensation payable to the
credit risk manager) due to the Master Servicer for such Distribution
Date.
Controlling
Person:
Means,
with respect to any Person, any other Person who “controls” such Person within
the meaning of the Securities Act.
Corporate
Trust Office:
The
principal corporate trust office of the Trustee or the Securities Administrator,
as the case maybe, at which, at any particular time its corporate business
in
connection with this agreement shall be administered, which office at the date
of the execution of this instrument is located at (ii) in the case of the
Trustee, HSBC Bank USA, National Association, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Nomura Home Equity Loan, Inc., 2007-1 or at such other
address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator and the Servicers, and (ii) with respect to the office of the
Securities Administrator, which for purposes of Certificate transfers and
surrender is located at Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services-Client
Manager (NHEL 2007-1), and for all other purposes is located at Xxxxx Xxxxx
Xxxx, X.X., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services-Client Manager (NHEL 2007-1) (or for overnight deliveries, at 0000
Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services-Client Manager (NHEL 2007-1)), or at such other address as the
Securities Administrator may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer, the Servicers and the
Trustee.
Corresponding
Certificate:
With
respect to:
|
(i)
|
REMIC IB
Regular Interest LTI-IA1, the Class I-A-1 Certificates;
|
|
|
(ii)
|
REMIC IB
Regular Interest LTI-IA2, the Class I-A-2 Certificates;
|
|
|
(iii)
|
REMIC IB
Regular Interest LTI-IA3, the Class I-A-3 Certificates;
|
|
|
(iv)
|
REMIC IB
Regular Interest LTI-IA4, the Class I-A-4 Certificates;
|
|
|
(v)
|
REMIC IB
Regular Interest LTI-IM1, the Class I-M-1 Certificates;
|
|
|
(vi)
|
REMIC IB
Regular Interest LTI-IM2, the Class I-M-2 Certificates;
|
|
|
(vii)
|
REMIC IB
Regular Interest LTI-IM3, the Class I-M-3 Certificates;
|
|
|
(viii)
|
REMIC IB
Regular Interest LTI-IP, the Class I-P Certificates;
|
|
|
(ix)
|
REMIC
IIB Regular Interest LTII-IA1, the Class II-I-A
|
|
|
(x)
|
REMIC
IIB Regular Interest LTII-IIA1A, the Class II-A-1A
Certificates,
|
|
|
(xi)
|
REMIC
IIB Regular Interest LTII-IIA1B, the Class II-A-1B
Certificates,
|
|
|
(xii)
|
REMIC
IIB Regular Interest LTII-IIA2, the Class II-A-2
Certificates;
|
|
|
(xiii)
|
REMIC
IIB Regular Interest LTII-IIA3, the Class II-A-3
Certificates;
|
|
|
(xiv)
|
REMIC
IIB Regular Interest LTII-IIA4A, the Class II-A-4A
Certificates,
|
|
|
(xv)
|
REMIC
IIB Regular Interest LTII-IIA4B, the Class II-A-4B
Certificates,
|
|
|
(xvi)
|
REMIC
IIB Regular Interest LTII-IIM1, the Class II-M-1
Certificates;
|
|
|
(xvii)
|
REMIC
IIB Regular Interest LTII-IIM2, the Class II-M-2
Certificates;
|
|
|
(xviii)
|
REMIC
IIB Regular Interest LTII-IIM3, the Class II-M-3
Certificates;
|
|
|
(xix)
|
REMIC
IIB Regular Interest LTII-IIM4, the Class II-M-4
Certificates;
|
|
|
(xx)
|
REMIC
IIB Regular Interest LTII-IIM5, the Class II-M-5 Certificates;
and
|
|
|
(xxi)
|
REMIC
IIB Regular Interest LTII-IIM6, the Class II-M-6 Certificates;
and
|
|
|
(xxii)
|
REMIC
IIB Regular Interest LTII-IIM7, the Class II-M-7 Certificates;
and
|
|
|
(xxiii)
|
REMIC
IIB Regular Interest LTII-IIM8, the Class II-M-8 Certificates;
and
|
|
|
(xxiv)
|
REMIC
IIB Regular Interest LTII-IIP, the Class II-P
Certificates.
|
Credit
Enhancement Percentage:
with
respect to any Distribution Date and any Class of Group I Offered Certificates
will be the percentage obtained by dividing (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class or Classes of Group I Offered
Certificates subordinate thereto and (ii) the Group I Overcollateralization
Amount by (y) the aggregate Stated Principal Balance of the Group I Mortgage
Loans, calculated after taking into account distributions of principal on the
Group I Mortgage Loans and distribution of the Principal Distribution Amount
to
the holders of the Group I Certificates then entitled to distributions of
principal on such Distribution Date.
Credit
Risk Manager:
Xxxxx
Fargo Bank, N.A., and its successors and assigns.
Current
Interest:
With
respect to any Class of Group II Senior Certificates or Group II Mezzanine
Certificates and any Distribution Date, the amount of interest accruing at
the
applicable Pass-Through Rate on the related Certificate Principal Balance during
the related Accrual Period; provided, that as to each Class of Group II Senior
Certificates and Group II Mezzanine Certificates, the Current Interest will
be
reduced by a pro rata portion of any Net Interest Shortfalls to the extent
not
covered by excess interest. No Current Interest will be payable with respect
to
any Class of Group II Senior Certificates or Group II Mezzanine Certificates
after the Distribution Date on which the outstanding Certificate Principal
Balance of such Certificate has been reduced to zero.
Custodial
Accounts:
The
accounts established and maintained by the Servicers with respect to receipts
on
the Group I Mortgage Loans and related REO Properties and Group II Mortgage
Loans and related REO Properties in accordance with Section 3.26(b) of this
Agreement and the Servicing Agreement.
Custodial
Agreement:
The
Custodial Agreement dated as of January 1, 2007 among the Custodian, the
Servicers and the Trustee.
Custodian:
Xxxxx
Fargo Bank, N.A., a national banking association, or any successor thereto
appointed pursuant to the Custodial Agreement.
Cut-off
Date:
January
1, 2007.
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, the unpaid principal balance thereof as of the close of
business on the Cut-off Date after application of all Principal Prepayments
received prior to the Cut-off Date and scheduled payments of principal due
on or
before the Cut-off Date, whether or not received, but without giving effect
to
any installments of principal received in respect of Due Dates after the Cut-off
Date.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction by a court of competent jurisdiction
in a proceeding under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan that became final and non-appealable, except such a reduction
resulting from a Deficient Valuation or any other reduction that results in
a
permanent forgiveness of principal.
Defaulting
Party:
As
defined in the Swap Agreement.
Deferred
Amount:
With
respect to any Class of Group II Senior Certificates or Group II Mezzanine
Certificates and any Distribution Date, the amount by which (x) the aggregate
of
the Applied Loss Amounts previously applied in reduction of the Certificate
Principal Balance thereof exceeds (y) the aggregate of amounts previously paid
in reimbursement thereof and the amount by which the Certificate Principal
Balance of any such Class has been increased due to the collection of Subsequent
Recoveries on the Group II Mortgage Loans.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, or any reduction in the amount of
principal to be paid in connection with any Scheduled Payment that results
in a
permanent forgiveness of principal, which valuation or reduction results from
an
order of such court that is final and non-appealable in a proceeding under
the
Bankruptcy Code.
Definitive
Certificates:
As
defined in Section 6.06.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Replacement Mortgage
Loan.
Delinquency
Rate:
With
respect to any calendar month and the Group II Mortgage Loans will be,
generally, the fraction, expressed as a percentage, the numerator of which
is
the Aggregate Loan Balance of all Group II Mortgage Loans 60 or more days
delinquent (including all Group II Mortgage Loans in bankruptcy or foreclosure
and all REO Properties) as of the close of business on the last day of such
month, and the denominator of which is the Aggregate Loan Balance of the Group
II Mortgage Loans as of the close of business on the last day of such
month.
Delinquent:
A
Mortgage Loan is “delinquent” if any payment due thereon is not made pursuant to
the terms of such Mortgage Loan by the close of business on the day such payment
is scheduled to be due. A Mortgage Loan is “30 days delinquent” if such payment
has not been received by the close of business on the corresponding day of
the
month immediately succeeding the month in which such payment was due, or, if
there is no such corresponding day (e.g., as when a 30-day month follows a
31-day month in which a payment was due on the 31st day of such month), then
on
the last day of such immediately succeeding month. Similarly for “60 days
delinquent,” “90 days delinquent” and so on.
Denomination:
With
respect to each Certificate, the amount set forth on the face thereof as the
“Initial Certificate Principal Balance of this Certificate”.
Depositor:
Nomura
Home Equity Loan, Inc., a Delaware corporation, or its successor in
interest.
Depository:
The
initial Depository shall be The Depository Trust Company (“DTC”), the nominee of
which is Cede & Co., or any other organization registered as a “clearing
agency” pursuant to Section 17A of the Exchange Act. The Depository shall
initially be the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a “clearing corporation” as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New
York.
Depository
Agreement:
With
respect to the Class of Book-Entry Certificates, the agreement among the
Depositor, the Trustee and the initial Depository, dated as of the Closing
Date,
substantially in the form of Exhibit I.
Depository
Participant:
A
broker, dealer, bank or other financial institution or other Person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
Determination
Date:
With
respect to any Distribution Date, the fifteenth (15th)
day of
the month of such Distribution Date or, if such day is not a Business Day,
the
immediately preceding Business Day.
Distribution
Account:
The
separate Eligible Account created and maintained by the Securities Administrator
pursuant to Section 3.31 in the name of the Trustee for the benefit of the
Certificateholders, which shall be divided into two sub-accounts designated
“Xxxxx Fargo Bank, N.A., in trust for registered holders of Nomura Home Equity
Loan, Inc., Asset-Backed Certificates, Series 2007-1, Group I Certificates” and
“Xxxxx Fargo Bank, N.A., in trust for registered holders of Nomura Home Equity
Loan, Inc., Asset-Backed Certificates, Series 2007-1, Group II Certificates”.
Funds in the Distribution Accounts shall be held in trust for the related
Certificateholders for the uses and purposes set forth in this
Agreement.
Distribution
Date:
The
twenty-fifth (25th)
day of
each calendar month after the initial issuance of the Certificates, or if such
twenty-fifth day is not a Business Day, the next succeeding Business Day,
commencing in February 2007.
Due
Date:
As to
any Mortgage Loan, the date in each month on which the related Scheduled Payment
is due, as set forth in the related Mortgage Note.
Due
Period:
With
respect to any Distribution Date, the period from the second day of the calendar
month preceding the calendar month in which such Distribution Date occurs
through the close of business on the first day of the calendar month in which
such Distribution Date occurs.
Eligible
Account:
Any of
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company, the long-term unsecured debt
obligations and short-term unsecured debt obligations of which are rated by
each
Rating Agency in one of its two highest long-term and its highest short-term
rating categories respectively, at the time any amounts are held on deposit
therein, or (ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered
to
the Trustee and to each Rating Agency, the Certificateholders have a claim
with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a segregated, non-interest bearing trust
account or accounts maintained with the corporate trust department of a federal
or state chartered depository institution or trust company having capital and
surplus of not less than $50,000,000, acting in its fiduciary capacity or (iv)
any other account acceptable to the Rating Agencies as evidenced in writing
by
the Rating Agencies. Eligible Accounts may bear interest, and may include,
if
otherwise qualified under this definition, accounts maintained with the Trustee
or Securities Administrator.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA
Restricted Certificate:
Each of
the Class I-X, Class II-X, Class I-P, Class II-P and Residual
Certificates.
Escrow
Account:
Shall
mean the account or accounts maintained by GMACM pursuant to Section 3.29.
Each Escrow Account shall be an Eligible Account.
Excess
Cap Payment:
With
respect to any Distribution Date, the excess, if any, of (1) the cap payments
made by the Cap Provider under the Class I-A-4 Cap Contract or Class I-M-3
Cap
Contract over (2) the amount of the unpaid Net WAC Rate Carryover Amounts
attributable to the Class I-A-4 Certificates and Class I-M-3 Certificates for
such Distribution Date.
Excess
Liquidation Proceeds:
To the
extent not required by law to be paid to the related Mortgagor, the excess,
if
any, of any Liquidation Proceeds with respect to a Mortgage Loan over the Stated
Principal Balance of such Mortgage Loan and accrued and unpaid interest at
the
related Mortgage Rate through the last day of the month in which the Mortgage
Loan has been liquidated.
Exchange
Act:
Securities and Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Exemption:
Prohibited Transaction Exemption 93-32, as amended from time to
time.
Expense
Fee Rate:
With
respect to each Group II Mortgage Loan, the aggregate amount, calculated on
a
weighted average basis, of the annual rate at which the fee to GMACM, the Master
Servicer and the rate at which the fee payable to any provider of lender paid
mortgage insurance, if any, is calculated.
Extra
Principal Distribution Amount:
With
respect to any Distribution Date, the lesser of (x) the Net Monthly Excess
Cashflow for such Distribution Date and (y) the Overcollateralization Increase
Amount for such Distribution Date.
Xxxxxx
Xxx:
Xxxxxx
Xxx (formerly, Federal National Mortgage Association), or any successor
thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Maturity Reserve Account:
As
defined in Section 5.17 hereof.
Final
Maturity Reserve Trust:
As
defined in Section 5.17 hereof.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Sponsor or the Master Servicer
pursuant to or as contemplated by Section 2.03(c) or Section 10.01), a
determination made by the related Servicer pursuant to this Agreement or the
Servicing Agreement, as applicable, 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 of each Final Recovery
Determination made thereby.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as
amended.
Fitch:
Fitch
Ratings.
Form
8-K Disclosure Information:
Has the
meaning set forth in Section 5.16(b) of this Agreement.
Xxxxxxx
Mac:
Federal
Home Loan Mortgage Corporation, or any successor thereto.
GMACM:
GMAC
Mortgage, LLC, and any successor thereto appointed under this Agreement in
connection with the servicing and administration of the GMACM Mortgage Loans.
GMACM
Mortgage Loans:
Those
Mortgage Loans serviced by GMACM pursuant to the terms and provisions of this
Agreement and identified as such on the Mortgage Loan Schedule.
Gross
Margin:
With
respect to each Group II 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 II Mortgage Loan.
Group
I Certificates:
The
Class I-A-1, Class I-A-2, Class I-A-3, Class I-A-4, Class I-M-1, Class I-M-2,
Class I-M-3, Class I-P, Class I-X, Class I-R and Class I-R-X
Certificates.
Group
I Marker Rate:
With
respect to the Class I-X Interest and any Distribution Date, a per annum rate
equal to two (2) times the weighted average of the Uncertificated REMIC IB
Pass-Through Rates for REMIC IB Regular Interest LTI-IA1, REMIC IB
Regular Interest LTI-IA2, REMIC IB Regular Interest LTI-IA3, REMIC IB
Regular Interest LTI-IA4, REMIC IB Regular Interest LTI-IM1, REMIC IB
Regular Interest LTI-IM2, REMIC IB Regular Interest LTI-IM3 and
REMIC IB Regular Interest LTI-ZZ, with the rate on each such REMIC IB
Regular Interest (other than REMIC IB Regular Interest LTI-ZZ) subject to a
cap equal to the Pass-Through Rate on the Corresponding Certificate and with
the
rate on REMIC IB Regular Interest LTI-ZZ subject to a cap of 0.00% per
annum for the purpose of this calculation; provided, however, that for this
purpose, the calculation of the Uncertificated REMIC IB Pass-Through Rate
and the related cap with respect to REMIC IB Regular Interest LTI-IA4 and
REMIC IB Regular Interest LTI-IM3 shall be multiplied by a fraction, the
numerator of which is the actual number of days in the Accrual Period and the
denominator of which is 30.
Group
I Mezzanine Certificates:
The
Class I-M-1, Class I-M-2 and Class I-M-3 Certificates
Group
I Mortgage Loans:
Those
Mortgage Loans identified on the Mortgage Loan Schedule as Group I Mortgage
Loans.
Group
I Net Swap Payment:
With
respect to each Distribution Date, the net payment required to be made pursuant
to the terms of the Group I Swap Agreement by either the Group I Swap Provider
or the Supplemental Interest Trust, which net payment shall not take into
account any Swap Termination Payment under the Group I Swap
Agreement.
Group
I Offered Certificates:
The
Group I Senior Certificates and the Group I Mezzanine Certificates.
Group
I Overcollateralization Amount:
With
respect to any Distribution Date, the excess, if any, of (a) the aggregate
Stated Principal Balance of the Group I Mortgage Loans as of the last day of
the
related Due Period over (b) the aggregate Certificate Principal Balance of
the
Group I Senior Certificates and the Group I Subordinate Certificates on such
Distribution Date (after taking into account the payment of 100% of the
Principal Funds on such Distribution Date).
Group
I Regular Certificate:
Any
Group I Certificate other than a Residual Certificate.
Group
I Senior Certificates:
The
Class I-A-1, Class I-A-2, Class I-A-3 and Class I-A-4 Certificates.
Group
I Senior Interest Distribution Amount:
With
respect to any Distribution Date and any Class of Group I Senior Certificates
will be equal to the Interest Distribution Amount for such Distribution Date
for
such Class and the Interest Carry Forward Amount, if any, for such Distribution
Date for such Class.
Group
I Stepdown Date:
will be
the later to occur of (x) the Distribution Date in February 2010 and (y) the
first Distribution Date on which the Credit Enhancement Percentage of the Group
I Senior Certificates (calculated for this purpose only after taking into
account distributions of principal on the Group I Mortgage Loans, but prior
to
any distribution of the Principal Distribution Amount to the holders of the
certificates then entitled to distributions of principal on the Distribution
Date) is greater than or equal to approximately 17.20%.
Group
I Subordinate Certificates:
The
Class I-M-1, Class I-M-2, Class I-M-3 and Class I-X Certificates.
Group
I Swap Agreement:
The
interest rate swap agreement, dated as of January 31, 2007, between the
Supplemental Interest Trust Trustee and the Swap Provider, including any
schedule, confirmations, credit support annex or other credit support document
relating thereto, and attached hereto as Exhibit P.
Group
I Swap Credit Support Annex:
The
credit support annex, dated as of January 31, 2007, between the Supplemental
Interest Trust Trustee and the Swap Provider, which is annexed to and forms
part
of the Swap Agreement.
Group
I Swap Provider:
The
swap provider under the Swap Agreement. Initially, the Swap Provider shall
be
HSBC Bank USA, National Association.
Group
I Trigger Event:
with
respect to any Distribution Date and the Group I Mortgage Loans, a Group I
Trigger Event is in effect if (x) the percentage obtained by dividing (i) the
aggregate Stated Principal Balance of Group I Mortgage Loans delinquent 60
days
or more (including Group I Mortgage Loans in foreclosure or discharged in
bankruptcy or real estate acquired by the trust in respect of any Group I
Mortgage Loan by foreclosure, sale, disposition or otherwise (“REO Property”))
by (ii) the aggregate Stated Principal Balance of the Group I Mortgage Loans,
in
each case, as of the last day of the previous calendar month, exceeds 48.28%
of
the Credit Enhancement Percentage of the Group I Senior Certificates for the
prior Distribution Date, or (y) the aggregate amount of Realized Losses incurred
since the Cut-off Date through the last day of the related Due Period divided
by
the aggregate outstanding principal balance of the Group I Mortgage Loans as
of
the Cut-off Date exceeds the applicable percentages set forth below with respect
to such Distribution Date:
|
Distribution
Date
|
Percentage
|
|
February
2010 to January 2011
|
0.75%
|
|
February
2011 to January 2012
|
1.35%
|
|
February
2012 to January 2013
|
1.90%
|
|
February
2013 to January 2014
|
2.25%
|
|
February
2014 and thereafter
|
2.30%
|
Group
II Certificates:
The
Class II-1-A, Class II-2-A-1A, Class II-2-A-1B, Class II-2-A-2, Class II-2-A-3,
Class II-2-A-4A, Class II-2-A-4B Certificates, Class II-M-1, Class II-M-2,
Class
II-M-3, Class II-M-4, Class II-M-5, Class II-M-6, Class II-M-7, Class II-M-8,
Class II-X, Class II-P, Class II-R and the Class II-R-X
Certificates.
Group
II Marker Rate:
With
respect to the Class II-X Certificates and any Distribution Date, a per annum
rate equal to two (2) times the weighted average of the Uncertificated REMIC
IIB
Pass-Through Rates for REMIC IIB Regular Interest LTII-IA, REMIC IIB Regular
Interest LTII-IIA1A, IIB Regular Interest LTII-IIA1B, REMIC IIB Regular Interest
LTII-IIA2, REMIC IIB Regular Interest LTII-IIA3, REMIC IIB Regular Interest
LTII-IIA4A, IIB Regular Interest LTII-IIA4B, REMIC IIB Regular Interest
LTII-IIM1, REMIC IIB Regular Interest LTII-IIM2, REMIC IIB Regular Interest
LTII-IIM3, REMIC IIB Regular Interest LTII-IIM4, REMIC IIB Regular Interest
LTII-IIM5, REMIC IIB Regular Interest LTII-IIM6, REMIC IIB Regular Interest
LTII-IIM7, REMIC IIB Regular Interest LTII-IIM8 and REMIC IIB Regular Interest
LTII-ZZ, with the per annum rate on each such REMIC IIB Regular Interest (other
than REMIC IIB Regular Interest LTII-ZZ) subject to a cap equal to the
Pass-Through Rate on the Corresponding Certificate for the purpose of this
calculation; and with the per annum rate on REMIC IIB Regular Interest LTII-ZZ
subject to a cap of zero for the purpose of this calculation; provided, however,
that for this purpose, the calculation of the Uncertificated REMIC IIB
Pass-Through Rate and the related cap with respect to each such REMIC IIB
Regular Interest (other than REMIC IIB Regular Interest LTII-ZZ) shall be
multiplied by a fraction, the numerator of which is the actual number of days
in
the Accrual Period and the denominator of which is thirty (30).
Group
II Mortgage Loans:
Those
Mortgage Loans identified on the Mortgage Loan Schedule as Group II Mortgage
Loans.
Group
II Net Swap Payment:
With
respect to each Distribution Date, the net payment required to be made pursuant
to the terms of the Group II Swap Agreement by either the Group II Swap Provider
or the Supplemental Interest Trust, which net payment shall not take into
account any Swap Termination Payment under the Group II Swap
Agreement.
Group
II Offered Certificates:
The
Group II Senior Certificates and the Group II Mezzanine
Certificates.
Group
II Overcollateralization Amount:
with
respect to any Distribution Date, the excess, if any, of (a) the Aggregate
Loan
Balance of the Group II Mortgage Loans for such Distribution Date (after giving
effect to scheduled payments of principal due during the related Due Period
to
the extent received or advanced, unscheduled collections of principal received
during the related Prepayment Period and after reduction for Realized Losses
on
the Group II Mortgage Loans incurred during the related Due Period) over (b)
the
aggregate Certificate Principal Balance of the Group II Offered Certificates
on
such Distribution Date (after taking into account the payment of 100% of the
Principal Remittance Amount on such Distribution Date).
Group
II Regular Certificate:
Any
Group II Certificate other than a Residual Certificate.
Group
II Mezzanine Certificates:
The
Class II-M-1, Class II-M-2, Class II-M-3, Class II-M-4, Class II-M-5, Class
II-M-6, Class II-M-7 and Class II-M-8 Certificates
Group
II Senior Certificates:
The
Class II-1-A, Class II-2-A-1A, Class II-2-A-1B, Class II-2-A-2, Class II-2-A-3,
Class II-2-A-4A and Class II-2-A-4B Certificates.
Group
II Stepdown Date:
will be
the earlier to occur of (i) the Distribution Date on which the aggregate
Certificate Principal Balance of the Group II Senior Certificates has been
reduced to zero and (ii) the later to occur of (x) the Distribution Date in
February 2010 and (y) the first Distribution Date on which the Senior
Enhancement Percentage (calculated for this purpose only after taking into
account distributions of principal on the Group II Mortgage Loans, but prior
to
any distributions to the holders of the Group II Offered Certificates then
entitled to distributions of principal on such Distribution Date) is greater
than or equal to approximately 14.40%.
Group
II Swap Agreement:
The
interest rate swap agreement, dated as of January 31, 2007, between the
Supplemental Interest Trust Trustee and the Swap Provider, including any
schedule, confirmations, credit support annex or other credit support document
relating thereto, and attached hereto as Exhibit P.
Group
II Swap Credit Support Annex:
The
credit support annex, dated as of January 31, 2007, between the Supplemental
Interest Trust Trustee and the Swap Provider, which is annexed to and forms
part
of the Swap Agreement.
Group
II Swap Provider:
The
swap provider under the Swap Agreement. Initially, the Swap Provider shall
be
ABN AMRO Bank N.V.
Group
II Trigger Event:
a Group
II Trigger Event with respect to the Group II Certificates will occur for any
Distribution Date if either (i) the Rolling Three Month Delinquency Rate as
of
the last day of the related Due Period equals or exceeds 40.00% of the Senior
Enhancement Percentage for such Distribution Date or (ii) the cumulative
Realized Losses as a percentage of the original Aggregate Loan Balance of the
Group II Mortgage Loans on the Closing Date for such Distribution Date is
greater than the percentage set forth in the following table:
|
Range
of Distribution Dates
|
Cumulative
Loss Percentage
|
|
February
2009 - January 2010
|
0.25%*
|
|
February
2010 - January 2011
|
0.65%*
|
|
February
2011 - January 2012
|
1.10%*
|
|
February
2012 - January 2013
|
1.60%*
|
|
February
2013 and thereafter
|
1.90%
|
*The
cumulative loss percentages set forth above are applicable to the first
distribution date in the corresponding range of distribution dates. The
cumulative loss percentage for each succeeding distribution date in a range
increases incrementally by 1/12 of the positive difference between the
percentage applicable to the first distribution date in that range and the
percentage applicable to the first distribution date in the succeeding
range.
Group
II-1 Allocation Amount:
With
respect to any Distribution Date, the product of the Senior Principal Payment
Amount for that Distribution Date and a fraction the numerator of which is
the
Principal Remittance Amount derived from the Group II-1 Mortgage Loans and
the
denominator of which is the Principal Remittance Amount, in each case for that
Distribution Date.
Group
II-1 Allocation Percentage:
With
respect to any Distribution Date, the Aggregate Loan Group Balance of the Group
II-1 Mortgage Loans divided by the Aggregate Loan Balance of the Group II
Mortgage Loans, in each case as of the first day of the related Due
Period.
Group
II-1 Excess Interest Amount:
With
respect to any Distribution Date, the product of the Monthly Excess Interest
required to be distributed on that Distribution Date pursuant to
Section 5.05(a)(iii)(1)(A) and a fraction the numerator of which is the
Principal Remittance Amount derived from the Group II-1 Mortgage Loans and
the
denominator of which is the Principal Remittance Amount, in each case for that
Distribution Date.
Group
II-1 Maximum Interest Rate: With
respect to any Distribution Date and the Group II-1 Certificates, an annual
rate
equal to the weighted average of the Maximum Mortgage Rates of the Group II-1
Mortgage Loans as stated in the related mortgage notes, minus the weighted
average Expense Fee Rate of the Group II-1 Mortgage Loans. The calculation
of
the Group II-1 Maximum Interest Rate will be based on a 360-day year and the
actual number of days elapsed during the related Interest Accrual
Period.
Group
II-1 Mortgage Loans:
Those
Mortgage Loans identified on the Mortgage Loan Schedule as Group II-1 Mortgage
Loans.
Group
II-2 Allocation Amount:
With
respect to any Distribution Date, the product of the Senior Principal Payment
Amount for that Distribution Date and a fraction the numerator of which is
the
Principal Remittance Amount derived from the Group II-2 Mortgage Loans and
the
denominator of which is the Principal Remittance Amount, in each case for that
Distribution Date.
Group
II-2 Allocation Percentage: With
respect to any Distribution Date, the Aggregate Loan Group Balance of the Group
II-2 Mortgage Loans divided by the Aggregate Loan Balance of the Group II
Mortgage Loans, in each case as of the first day of the related Due
Period.
Group
II-2 Excess Interest Amount:
With
respect to any Distribution Date, the product of the Monthly Excess Interest
required to be distributed on that Distribution Date pursuant to
Section 5.05(a)(iii)(1)(A) and a fraction the numerator of which is the
Principal Remittance Amount derived from the Group II-2 Mortgage Loans and
the
denominator of which is the Principal Remittance Amount, in each case for that
Distribution Date.
Group
II-2 Maximum Interest Rate: With
respect to any Distribution Date and the Group II-2 Certificates, an annual
rate
equal to the weighted average of the Maximum Mortgage Rates of the Group II-2
Mortgage Loans as stated in the related mortgage notes, minus the weighted
average Expense Fee Rate of the Group II-2 Mortgage Loans. The calculation
of
the Group II-2 Maximum Interest Rate will be based on a 360-day year and the
actual number of days elapsed during the related Interest Accrual
Period.
Group
II-2 Mortgage Loans:
Those
Mortgage Loans identified on the Mortgage Loan Schedule as Group II-2 Mortgage
Loans.
Indemnified
Persons:
The
Trustee, any Servicer (including any successor to any Servicer), the Master
Servicer, the Securities Administrator, the Custodian, the Trust Fund and their
officers, directors, agents and employees and, with respect to the Trustee,
any
separate co-trustee and its officers, directors, agents and
employees.
Independent:
When
used with respect to any specified Person, any such Person who (a) is in fact
independent of the Depositor, the Master Servicer, the Securities Administrator,
a Servicer, the Sponsor, any originator and their respective Affiliates, (b)
does not have any direct financial interest in or any material indirect
financial interest in the Depositor, the Master Servicer, the Securities
Administrator, a Servicer, the Sponsor, any originator or any Affiliate thereof,
and (c) is not connected with the Depositor, the Master Servicer, the Securities
Administrator, a Servicer, the Sponsor, any originator or any Affiliate thereof
as an officer, employee, promoter, underwriter, trustee, partner, director
or
Person performing similar functions; provided, however, that a Person shall
not
fail to be Independent of the Depositor, the Master Servicer, the Securities
Administrator, a Servicer, the Sponsor, any originator or any Affiliate thereof
merely because such Person is the beneficial owner of one percent (1%) or less
of any Class of securities issued by the Depositor, the Master Servicer, the
Securities Administrator, a Servicer, the Sponsor, any originator or any
Affiliate thereof, as the case may be.
When
used
with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01(B) of the Securities and Exchange Commission’s Regulation
S-X. Independent means, when used with respect to any other Person, a Person
who
(A) is in fact independent of another specified Person and any affiliate of
such
other Person, (B) does not have any material direct or indirect financial
interest in such other Person or any affiliate of such other Person, (C) is
not
connected with such other Person or any affiliate of such other Person as an
officer, employee, promoter, underwriter, Securities Administrator, partner,
director or Person performing similar functions and (D) is not a member of
the
immediate family of a Person defined in clause (B) or (C) above.
Index:
As of
any Adjustment Date, the index applicable to the determination of the Mortgage
Rate on each Group II Mortgage Loan which will generally be based on Six-Month
LIBOR or One-Year LIBOR.
Initial
Certificate Principal Balance:
With
respect to any Certificate, the Certificate Principal Balance of such
Certificate or any predecessor Certificate on the Closing Date.
Insurance
Policy:
With
respect to any Mortgage Loan included in the Trust Fund, any insurance policy,
including all riders and endorsements thereto in effect with respect to such
Mortgage Loan, including any replacement policy or policies for any Insurance
Policies.
Insurance
Proceeds:
Proceeds paid in respect of the Mortgage Loans pursuant to any Insurance Policy
or any other insurance policy covering a Mortgage Loan, to the extent such
proceeds are payable to the mortgagee under the Mortgage, the related Servicer
or the trustee under the deed of trust and are not applied to the restoration
of
the related Mortgaged Property or released to the Mortgagor in accordance with
the servicing standard set forth in Section 3.01 hereof or pursuant to the
Servicing Agreement, other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured
Expenses:
Expenses covered by any Insurance Policy with respect to the Mortgage
Loans.
Interest
Carry Forward Amount:
With
respect to any Class of Group I Certificates (other than the Class I-X, Class
I-P, Class I-R and Class I-R-X Certificates) and any Distribution Date, the
amount, if any, by which the Interest Distribution Amount for that Class of
Group I Certificates for the immediately preceding Distribution Date exceeded
the actual amount distributed on such Class in respect of interest on the
immediately preceding Distribution Date, together with any Interest Carry
Forward Amount with respect to such Class remaining unpaid from the previous
Distribution Date.
Interest
Determination Date:
Shall
mean the second LIBOR Business Day preceding the commencement of each Accrual
Period.
Interest
Distribution Amount:
With
respect to any Class of Group I Certificates (other than the Class I-P, Class
I-R and Class I-R-X Certificates) and any Distribution Date, an amount equal
to
the interest accrued during the related Accrual Period at the applicable
Pass-Through Rate on the Certificate Principal Balance (or Certificate Notional
Balance) of such Group I Certificate immediately prior to such Distribution
Date
less such Group I Certificate’s share of any Net Interest Shortfall and the
interest portion of any Realized Losses on the Group I Mortgage Loans allocated
to such Certificate pursuant to Section 1.02. The Interest Distribution
Amount with respect to each Class of Group I Certificates (other than the Class
I-A-4 Certificates and Class I-M-3 Certificates) is calculated on the basis
of a
360-day year consisting of twelve 30-day months. The Interest Distribution
Amount with respect to the Class I-A-4 Certificates and Class I-M-3 Certificates
is calculated on the basis of a 360-day year and the actual number of days
elapsed in the related Accrual Period. No Interest Distribution Amount will
be
payable with respect to any Class of Group I Certificates after the Distribution
Date on which the outstanding Certificate Principal Balance (or Certificate
Notional Balance) of such Group I Certificate has been reduced to
zero.
Interest
Remittance Amount:
With
respect to any Distribution Date and Loan Group I or Loan Subgroup II-1 or
Loan
Subgroup II-2, that portion of the Available Distribution Amount for such
Distribution Date generally equal to (i) the sum, without duplication, of (a)
all scheduled interest during the related Due Period with respect to the
Mortgage Loans in the related Loan Group less the Servicing Fee, the Credit
Risk
Management Fee and the fee payable to any provider of lender-paid mortgage
insurance, if any, (b) all Advances relating to interest with respect to the
Mortgage Loans in the related Loan Group made on or prior to the related
Remittance Date, (c) all Compensating Interest with respect to the Mortgage
Loans in the related Loan Group and required to be remitted by the related
Servicers or the Master Servicer pursuant to this Agreement or the Servicing
Agreement with respect to such Distribution Date, (d) Liquidation Proceeds
and
Subsequent Recoveries with respect to the Mortgage Loans in the related Loan
Group collected during the related Prepayment Period (to the extent such
Liquidation Proceeds and Subsequent Recoveries relate to interest), (e) all
amounts relating to interest with respect to each Mortgage Loan in the related
Loan Group repurchased by the Sponsor pursuant to Sections 2.02 and 2.03 and
(f)
all amounts in respect of interest paid by the Master Servicer pursuant to
Section 10.01 to the extent remitted by the Master Servicer to the
Distribution Account pursuant to this Agreement and minus (ii) all amounts
required to be reimbursed by the Trust pursuant to Section 3.32 or as
otherwise set forth in this Agreement or any Custodial Agreement.
Interest
Shortfall:
With
respect to any Distribution Date and Loan Group I or Loan Group II, the
aggregate shortfall, if any, in collections of interest (adjusted to the related
Net Mortgage Rates) on Mortgage Loans in the related Loan Group resulting from
(a) Principal Prepayments in full received during the related Prepayment Period,
(b) partial Principal Prepayments received during the related Prepayment Period
to the extent applied prior to the Due Date in the month of the Distribution
Date and (c) interest payments on certain of the Mortgage Loans in the related
Loan Group being limited pursuant to the provisions of the Relief
Act.
ISDA
Master Agreement:
The
ISDA Master Agreement dated as of January 31, 2007, as amended and supplemented
from time to time, between the Group I Swap Provider and the Trustee, as trustee
on behalf of the Supplemental Interest Trust, or the Group II Swap Provider
and
the Trustee, as trustee on behalf of the Supplemental Interest Trust, as
applicable.
Last
Scheduled Distribution Date:
The
Distribution Date in February 2037.
Latest
Possible Maturity Date:
The
second Distribution Date following the final scheduled maturity date of the
related Mortgage Loan in the Trust Fund having the latest scheduled maturity
date as of the Cut-off Date. For purposes of the Treasury Regulations under
Code
Section 860A through 860G, the latest possible maturity date of each
regular interest issued by REMIC IA, REMIC IB, REMIC IC, REMIC ID,
REMIC IE, REMIC IF, REMIC IIA, REMIC IIB, REMIC IIC, REMIC IID, REMIC IIE and
REMIC IIF shall be the Latest Possible Maturity Date.
LIBOR
Business Day:
Shall
mean any day other than a Saturday or a Sunday or a day on which banking
institutions in the State of New York or in the city of London, England are
required or authorized by law to be closed.
LIBOR
Determination Date:
The
second LIBOR Business Day before the first day of the related Accrual
Period.
Liquidated
Loan:
With
respect to any Distribution Date, a defaulted Mortgage Loan that has been
liquidated through deed-in-lieu of foreclosure, foreclosure sale, trustee’s sale
or other realization as provided by applicable law governing the real property
subject to the related Mortgage and any security agreements and as to which
the
related Servicer has certified in the related Prepayment Period in writing
to
the Securities Administrator that it has made a Final Recovery
Determination.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds, received in connection with the partial
or complete liquidation of a Mortgage Loan, whether through trustee’s sale,
foreclosure sale or otherwise, or in connection with any condemnation or partial
release of a Mortgaged Property and any other proceeds received with respect
to
an REO Property, less the sum of related unreimbursed Advances, Servicing Fees
and Servicing Advances and all expenses of liquidation, including property
protection expenses and foreclosure and sale costs, including court and
reasonable attorneys fees.
Loan
Group:
Either
of Loan Group I or Loan Group II. “Loan Group I” refers to the Group I Mortgage
Loans and “Loan Group II” refers to the Group II Mortgage Loans.
Loan-to-Value
Ratio:
The
fraction, expressed as a percentage, the numerator of which is the original
principal balance of the Mortgage Loan and the denominator of which is the
Appraised Value of the related Mortgaged Property.
Loan
Subgroup:
Either
of subgroup II-1 or subgroup II-2. “Loan Subgroup II-1” refers to the Group II-1
Mortgage Loans and “Loan Subgroup II-2” refers to the Group II-2 Mortgage
Loans.
Majority
Class I-X Certificateholder:
The
Holder of a 50.01% or greater Percentage Interest in the Class I-X
Certificates.
Majority
Class II-X Certificateholder:
The
Holder of a 50.01% or greater Percentage Interest in the Class II-X
Certificates.
Master
Servicer:
As of
the Closing Date, Xxxxx Fargo Bank, N.A. and thereafter, its respective
successors in interest who meet the qualifications of this Agreement. The Master
Servicer and the Securities Administrator shall at all times be the same Person
or Affiliates.
Master
Servicer Default:
One or
more of the events described in Section 8.01(b).
Master
Servicer Fee Rate:
With
respect to each Mortgage Loan, for a period of one full month, equal to
one-twelfth of the product of (a) 1 basis point (0.010%) and (b) the Stated
Principal Balance of such Mortgage Loan. Such fee will be payable monthly,
computed on the basis of the same principal amount and period with respect
to
which any related interest payment on such Mortgage Loan is computed. The
obligation to pay the Master Servicer Fee will be limited to, and the master
servicing fee will be payable from, the interest portion of such monthly
payments collected.
Master
Servicing Fee:
With
respect to each Mortgage Loan, the amount of the annual master servicing fee
that shall be paid to the Master Servicer.
Master
Servicing Compensation:
As
defined in Section 4.12.
Maximum
Interest Rate:
With
respect to any Distribution Date and the Group II Offered Certificates, the
Group II-1 Maximum Interest Rate, the Group II-2 Maximum Interest Rate or the
Mezzanine Maximum Interest Rate, as applicable.
Maximum
Mortgage Interest Rate:
With
respect to each Group II Mortgage Loan, the percentage set forth in the related
Mortgage Note as the maximum interest rate.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
Mezzanine
Maximum Interest Rate:
With
respect to any Distribution Date and the Group II Mezzanine Certificates, an
annual rate equal to the weighted average of the Group II-1 Maximum Interest
Rate and the Group II-2 Maximum Interest Rate weighted on the basis of the
Stated Principal Balance of the Group II-1 Mortgage Loans and Group II-2
Mortgage Loans as of the first day of the related Due Period.
MIN:
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
Minimum
Mortgage Interest Rate:
With
respect to each Group II Mortgage Loan, the percentage set forth in the related
Mortgage Note as the minimum Mortgage Rate thereunder.
Minimum
Servicing Requirements:
With
respect to a successor to GMACM appointed pursuant to Section 7.06(a)
hereunder:
(i) the
proposed successor Servicer is (1) an affiliate of the Master Servicer that
services mortgage loans similar to the Mortgage Loans in the jurisdictions
in
which the related Mortgaged Properties are located or (2) the proposed successor
Servicer has a rating of at least “Above Average” by S&P and either a rating
of at least “RPS2” by Fitch or a rating of at least “SQ2” by Moody’s;
and
(ii) the
proposed successor Servicer has a net worth of at least
$25,000,000.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as the mortgagee of such Mortgage
Loan,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
Monthly
Excess Cashflow:
With
respect to any Distribution Date and the Group II Certificates, means the sum
of
(a) the Monthly Excess Interest, (b) the Overcollateralization Release Amount,
if any, for such Distribution Date, and (c) the Principal Remittance Amount
remaining following payments of the Principal Payment Amount to the Group II
Senior Certificates and Group II Mezzanine Certificates.
Monthly
Excess Interest:
With
respect to any Distribution Date and the Group II Certificates, the excess
of
(x) the Interest Remittance Amount for such Distribution Date over (y) the
sum
of Current Interest and Carryforward Interest on the Group II Senior
Certificates and Group II Mezzanine Certificates for such Distribution
Date.
Monthly
Statement:
The
statement delivered to the Certificateholders pursuant to
Section 5.08.
Moody’s:
Xxxxx’x
Investors Service, Inc. or its successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument creating a first lien on or first
priority ownership interest in an estate in fee simple in real property securing
a Mortgage Note.
Mortgage
File:
The
Mortgage Loan Documents pertaining to a particular Mortgage Loan and any
additional documents delivered to the Trustee or the Custodian on behalf of
the
Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage
Loan Documents:
As
defined in Section 2.01.
Mortgage
Loans:
Such of
the Mortgage Loans transferred and assigned to the Trustee pursuant to the
provisions hereof, as from time to time are held as a part of the Trust Fund
(including any REO Property), the mortgage loans so held being identified in
the
Mortgage Loan Schedule, notwithstanding foreclosure or other acquisition of
title of the related Mortgaged Property.
Mortgage
Loan Purchase Agreement:
The
Mortgage Loan Purchase Agreement dated as of January 31, 2007, between the
Sponsor, as seller and the Depositor, as purchaser, a form of which is attached
hereto as Exhibit
C.
Mortgage
Loan Purchase Price:
The
price, calculated as set forth in Section 10.01, to be paid in connection
with the purchase of the Mortgage Loans of a Loan Group pursuant to
Section 10.01.
Mortgage
Loan Schedule:
The
list of Mortgage Loans (as from time to time amended by the Servicers to reflect
the deletion of Deleted Mortgage Loans and the addition of Replacement Mortgage
Loans pursuant to the provisions of this Agreement) transferred to the Trustee
as part of the Trust Fund and from time to time subject to this Agreement,
the
initial Mortgage Loan Schedule being attached hereto as Exhibit
B,
setting
forth the following information with respect to each Mortgage Loan:
(i) the
Mortgage Loan identifying number;
(ii) the
Mortgage Rate in effect as of the Cut-off Date;
(iii) the
Servicing Fee Rate;
(iv) the
Net
Mortgage Rate in effect as of the Cut-off Date;
(v) the
maturity date;
(vi) the
original principal balance;
(vii) the
Cut-off Date Principal Balance;
(viii) the
original term;
(ix) the
remaining term;
(x) the
property type;
(xi) the
product type (e.g., 2/28, 15 year fixed, 30 year fixed, 15/30 balloon,
etc.);
(xii) with
respect to each MOM Loan, the related MIN;
(xiii) the
Custodian;
(xiv) a
code
indicating whether the Mortgage Loan is subject to a Prepayment Charge, the
term
of such Prepayment Charge and the amount of such Prepayment Charge;
(xv) with
respect to each Group II Mortgage Loan, the first Adjustment Date;
(xvi) with
respect to each Group II Mortgage Loan, the Gross Margin;
(xvii) with
respect to each Group II Mortgage Loan, the Maximum Mortgage Interest Rate
under
the terms of the Mortgage Note;
(xviii) with
respect to each Group II Mortgage Loan, the Minimum Mortgage Interest Rate under
the terms of the Mortgage Note;
(xix) with
respect to each Group II Mortgage Loan, the Periodic Rate Cap;
(xx) with
respect to each Group II Mortgage Loan, the first Adjustment Date immediately
following the Cut-off Date;
(xxi) with
respect to each Group II Mortgage Loan, the related Index;
(xxii) the
related Loan Group; and
(xxiii) the
Servicer.
Such
schedule shall also set forth the aggregate Cut-off Date Principal Balance
for
all of the Mortgage Loans.
Mortgage
Note:
The
original executed note or other evidence of indebtedness of a Mortgagor under
a
Mortgage Loan.
Mortgage
Rate:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note, which rate with respect to each Group II Mortgage Loan (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 to the nearest 0.125% as provided
in
the Mortgage Note, of the related 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 adjustable rate
Mortgage Loan on any Adjustment Date shall never be more than the lesser of
(i)
the sum of the Mortgage Rate in effect immediately prior to the Adjustment
Date
plus the related Periodic Rate Cap, if any, and (ii) the related Maximum
Mortgage Interest Rate, and shall never be less than the greater of (i) the
Mortgage Interest 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.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Funds Cap:
With
respect to any Distribution Date and the Group II-1 Certificates, a fraction,
expressed as a percentage, the numerator of which is the product of (I) (a)
the
related Optimal Interest Remittance Amount for such Distribution Date, minus
(b)
the sum of (1) the Group II-1 Allocation Percentage of any Group II Net Swap
Payment payable to the Group II Swap Provider on such Distribution Date, and
(2)
the Group II-1 Allocation Percentage of any Swap Termination Payment (unless
such payment is the result of a Swap Provider Trigger Event and to the extent
not paid by the Securities Administrator from any upfront payment received
pursuant to any replacement interest rate swap agreement that may be entered
into by the Supplemental Interest Trust Trustee) payable to the Group II Swap
Provider on such Distribution Date, and (II) 12, and the denominator of which
is
the outstanding aggregate Stated Principal Balance of the Group II-1 Mortgage
Loans for the immediately preceding Distribution Date, multiplied by a fraction,
the numerator of which is 30 and the denominator of which is the actual number
of days elapsed in the immediately preceding Interest Accrual Period. For
federal income tax purposes, with respect to any Distribution Date and the
REMIC
IIC Regular Interests, ownership of which is evidenced by the Group II-1
Certificates, the equivalent of such rate shall be expressed as the weighted
average of the Uncertificated REMIC IIB Pass-Through Rate on REMIC IIB Regular
Interest LTII-1GRP, weighted on the basis of the Uncertificated Principal
Balance of such REMIC IIB Regular Interest.
With
respect to any Distribution Date and the Group II-2 Certificates, a fraction,
expressed as a percentage, the numerator of which is the product of (I) (a)
the
related Optimal Interest Remittance Amount for such Distribution Date, minus
(b)
the sum of (1) the Group II-2 Allocation Percentage of any Group II Net Swap
Payment payable to the Group II Swap Provider on such Distribution Date and
(2)
the Group II-2 Allocation Percentage of any Swap Termination Payment (unless
such payment is the result of a Swap Provider Trigger Event and to the extent
not paid by the Securities Administrator from any upfront payment received
pursuant to any replacement interest rate swap agreement that may be entered
into by the Supplemental Interest Trust Trustee) payable to the Group II Swap
Provider on such Distribution Date, and (II) 12, and the denominator of which
is
the outstanding aggregate Stated Principal Balance of the Group II-2 Mortgage
Loans for the immediately preceding Distribution Date, multiplied by a fraction,
the numerator of which is 30 and the denominator of which is the actual number
of days elapsed in the immediately preceding Interest Accrual Period. For
federal income tax purposes, with respect to any Distribution Date and the
REMIC
IIC Regular Interests, ownership of which is evidenced by the Group II-2
Certificates, the equivalent of such rate shall be expressed as the weighted
average of the Uncertificated REMIC IIB Pass-Through Rate on REMIC IIB Regular
Interest LTII-2GRP, weighted on the basis of the Uncertificated Principal
Balance of such REMIC IIB Regular Interest.
With
respect to any Distribution Date and the Group II Mezzanine Certificates, a
per
annum rate equal to the weighted average (weighted on the basis of the results
of subtracting from the outstanding Aggregate Loan Group Balance of each loan
group as of the first day of the related Due Period the current aggregate
Certificate Principal Balance of the related Group II Senior Certificates)
of
the Net Funds Cap for the Group II-1 Certificates and the Net Funds Cap for
the
Group II-2 Certificates. For federal income tax purposes, with respect to any
Distribution Date and the REMIC IIC Regular Interests, ownership of which is
evidence by the Group II-2 Certificates, the equivalent of such rate shall
be
expressed as the weighted average of the Uncertificated REMIC IIB Pass-Through
Rate on REMIC IIB Regular Interest LTII-1SUB and REMIC IIB Regular Interest
LTII-2SUB (subject to a cap and a floor equal to the Uncertificated REMIC IIB
Pass-Through Rate on REMIC IIB Regular Interest LTII-1GRP and the Uncertificated
REMIC IIB Pass-Through Rate on REMIC IIB Regular Interest LTII-2GRP,
respectively), weighted on the basis of the Uncertificated Principal Balance
of
each such REMIC IIB Regular Interest
Net
Interest Shortfalls:
With
respect to any Distribution Date and Loan Group I, Interest Shortfalls net
of
payments by the Servicers or the Master Servicer in respect of Compensating
Interest
Net
Liquidation Proceeds:
With
respect to a Mortgage Loan are Liquidation Proceeds net of unreimbursed advances
by the related servicer and advances and expenses incurred by the related
servicer in connection with the liquidation of such Mortgage Loan and the
related Mortgaged Property.
Net
Monthly Excess Cashflow:
with
respect to any Distribution Date and the Group I Certificates, means the sum
of
(a) any Overcollateralization Reduction Amount and (b) the excess of (x) the
Available Distribution Amount for such Distribution Date over (y) the sum for
such Distribution Date of (A) the aggregate Senior Interest Distribution Amounts
payable to the Group I Senior Certificates and the aggregate Interest
Distribution Amounts payable to the Group I Mezzanine Certificates on that
Distribution Date, (B) the Principal Funds for that Distribution Date and (C)
any Group I Net Swap Payments to the extent described in this prospectus
supplement or Swap Termination Payments (not caused by a Swap Provider Trigger
Event) owed to the Group I Swap Provider.
Net
Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the related
Mortgage Rate less the sum of (i) the Servicing Fee Rate, (ii) the Master
Servicer Fee Rate and (iii) the rate at which the fee payable to any provider
of
lender-paid mortgage insurance is calculated, if applicable.
Net
Swap Payment:
The
Group I Net Swap Payment or the Group II Net Swap Payment, as
applicable.
Net
WAC Pass-Through Rate:
With
respect to each Distribution Date and the Group I Offered Certificates (other
than the Class I-A-4 Certificates), a per annum rate (adjusted in the case
of
the Class I-M-3 Certificates for the actual number of days elapsed in the
related Interest Accrual Period) equal to the weighted average of the Net
Mortgage Rates of the Group I Mortgage Loans as of the first day of the related
Due Period. For federal income tax purposes, with respect to any Distribution
Date, the equivalent of such rate shall be expressed as the weighted average
of
the Uncertificated REMIC IB Pass-Through Rate on REMIC IB Regular
Interest LTI-NSC, weighted on the basis of the Uncertificated Principal Balance
of such REMIC IB Regular Interest (adjusted in the case of the Class I-M-3
Certificates for the actual number of days elapsed in the related Interest
Accrual Period).
With
respect to each Distribution Date and the Class I-A-4 Certificates, a per annum
rate equal to the excess of (a) the weighted average of the Net Mortgage Rates
of the Group I Mortgage Loans as of the first day of the related Due Period
over
(b) the sum of (i) the product of (x) any Group I Net Swap Payment owed to
the
Group I Swap Provider on such Distribution Date divided by the Certificate
Principal Balance of the Class I-A-4 Certificates immediately prior to the
such
Distribution Date and (y) 12 and (ii) the product of (x) any Swap Termination
Payment (other than any Swap Termination Payment resulting from a Swap Provider
Trigger Event), payable by the supplemental interest trust on such Distribution
Date, divided by the Certificate Principal Balance of the Class I-A-4
Certificates immediately prior to the such Distribution Date and (y) 12. The
Net
WAC Pass-Through Rate applicable to the Class I-A-4 Certificates will be
adjusted on an actual/360 basis. For federal income tax purposes, with respect
to any Distribution Date, and the REMIC IIC Regular Interest, the ownership
of
which is represented by the Class I-A-4 Certificates, the Net Funds Cap shall
be
expressed as the weighted average of the Uncertificated REMIC IB
Pass-Through Rate on REMIC IB Regular Interest LTI-SC, weighted on the
basis of the Uncertificated Principal Balance of such REMIC IB Regular
Interest, adjusted to an effective rate reflecting the accrual of interest
on an
actual/360 basis.
Net
WAC Rate Carryover Amount:
With
respect to each Class of Group I Senior Certificates and Group I Mezzanine
Certificates and any Distribution Date on which the related Pass-Through Rate
is
reduced by the related Net WAC Pass-Through Rate, an amount equal to the sum
of
(i) the excess of (x) the amount of interest such Class would have been entitled
to receive on such Distribution Date if the Pass-Through Rate applicable to
such
Class would not have been reduced by the related Net WAC Pass-Through Rate
on
such Distribution Date over (y) the amount of interest paid on such Distribution
Date to such Class plus (ii) the related Net WAC Rate Carryover Amount for
the
previous Distribution Date not previously distributed to such
Class.
Net
WAC Reserve Fund:
Shall
mean the segregated non-interest bearing trust account created and maintained
by
the Securities Administrator pursuant to Section 5.12 hereof.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Nonrecoverable
Advance:
With
respect to any Mortgage Loan, any portion of an Advance or Servicing Advance
previously made or proposed to be made by the related Servicer pursuant to
this
Agreement or the Servicing Agreement, as applicable or the Master Servicer
as
Successor Servicer, that, in the good faith judgment of the related Servicer
or
the Master Servicer as Successor Servicer, will not or, in the case of a
proposed Advance or Servicing Advance, would not, be ultimately recoverable
by
it from the related Mortgagor, related Liquidation Proceeds, Insurance Proceeds
or otherwise.
Notional
Amount:
For
each Distribution Date shall be equal to the lesser of (a) the aggregate Stated
Principal Balances of the Group I Mortgage Loans as of the last day of the
related Due Period or the Aggregate Loan Balance of the Group II Mortgage Loans,
as applicable, on the Business Day immediately preceding such Distribution
Date
and (b) the related Swap Notional Amount for such Distribution Date as set
forth
in the Swap Agreement.
Officer’s
Certificate:
A
certificate (i) signed by the Chairman of the Board, the Vice Chairman of the
Board, the President, a Vice President (however denominated), an Assistant
Vice
President, the Treasurer, the Secretary, or one of the assistant treasurers
or
assistant secretaries of the Depositor or the Trustee (or any other officer
customarily performing functions similar to those performed by any of the above
designated officers and also to whom, with respect to a particular matter,
such
matter is referred because of such officer’s knowledge of and familiarity with a
particular subject) or (ii), if provided for in this Agreement, signed by an
Authorized Servicer Representative, as the case may be, and delivered to the
Depositor, the Sponsor, the Master Servicer, the Securities Administrator and/or
the Trustee, as the case may be, as required by this Agreement.
One-Month
LIBOR:
With
respect to any Accrual Period (other than the first Accrual Period) and the
Class I-A-4 Certificates, the Class I-M-3 Certificates and the Group II
Certificates, the rate determined by the Securities Administrator on the related
Interest Determination Date on the basis of the rate for U.S. dollar deposits
for one month that appears on Telerate Screen Page 3750 as of 11:00 a.m. (London
time) on such Interest Determination Date. If such rate does not appear on
such
page (or such other page as may replace that page on that service, or if such
service is no longer offered, such other service for displaying One-Month LIBOR
or comparable rates as may be reasonably selected by the Securities
Administrator), One-Month LIBOR for the applicable Accrual Period will be the
Reference Bank Rate. If no such quotations can be obtained by the Securities
Administrator and no Reference Bank Rate is available, One-Month LIBOR will
be
One-Month LIBOR applicable to the preceding Accrual Period. The establishment
of
One-Month LIBOR on each Interest Determination Date by the Securities
Administrator and the Securities Administrator’s calculation of the rate of
interest applicable to the Class I-A-4 Certificates, Class I-M-3 Certificates,
Group II Senior Certificates and Group II Mezzanine Certificates for the related
Accrual Period shall, in the absence of manifest error, be final and binding.
With respect to the first Accrual period, One-Month LIBOR shall equal 5.3200%
per annum.
One-Year
LIBOR: The
per
annum rate equal to the average of interbank offered rates for one-year U.S.
dollar-denominated deposits in the London market based on quotations of major
banks as published in The Wall Street Journal and most recently available as
of
the time specified in the related Mortgage Note.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for the Sponsor, the Master
Servicer, the Depositor or a Servicer, reasonably acceptable to each addressee
of such opinion; provided that with respect to Section 2.05, 7.05 or 11.01,
or the interpretation or application of the REMIC Provisions, such counsel
must
(i) in fact be independent of the Sponsor, the Master Servicer Depositor and
such Servicer, (ii) not have any direct financial interest in the Sponsor,
the
Depositor, the Master Servicer or such Servicer or in any affiliate of any
of
them, and (iii) not be connected with the Sponsor, the Depositor, the Master
Servicer or such Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Optimal
Interest Remittance Amount:
With
respect to any Distribution Date and the Group II Senior Certificates and Group
II Mezzanine Certificates, will be equal to the excess of (i) the product of
(1)(x) the weighted average of the Net Mortgage Rates of the Group II Mortgage
Loans as of the first day of the related Due Period divided by (y) 12 and (2)
the Aggregate Loan Balance of the Group II Mortgage Loans for the immediately
preceding Distribution Date, over (ii) any expenses that reduce the Interest
Remittance Amount relating to Loan Group II that did not arise as a result
of a
default or delinquency of the Group II Mortgage Loans or were not taken into
account in computing the Expense Fee Rate.
Optional
Termination:
The
termination of a portion of the Trust Fund created hereunder as a result of
the
purchase of all of (i) the Group I Mortgage Loans and any related REO Property
or (ii) the Group II Mortgage Loans and any related REO Property, as described
in Section 10.01.
Optional
Termination Date:
With
respect to the Group I Mortgage Loans, the first Distribution Date on which
the
Master Servicer may purchase, at its option the Group I Mortgage Loans and
related REO Properties as described in Section 10.01. With respect to the
Group II Mortgage Loans, the first Distribution Date on which the Master
Servicer may purchase, at its option the Group II Mortgage Loans and related
REO
Properties as described in Section 10.01.
OTS:
The
Office of Thrift Supervision or any successor thereto.
OTS
Method:
The
method used by OTS to calculate delinquencies.
Outstanding:
With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(a) Certificates
theretofore canceled by the Securities Administrator or delivered to the
Securities Administrator for cancellation; and
(b) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Securities Administrator pursuant to this
Agreement.
Outstanding
Mortgage Loan:
As of
any date of determination, a Mortgage Loan with a Stated Principal Balance
greater than zero that was not the subject of a Principal Prepayment in full,
and that did not become a Liquidated Loan, prior to the end of the related
Prepayment Period.
Overcollateralization
Deficiency Amount:
With
respect to any Distribution Date and the Group II Mortgage Loans, will be equal
to the amount, if any, by which (x) the Targeted Overcollateralization Amount
for such Distribution Date exceeds (y) the Group II Overcollateralization Amount
for such Distribution Date, calculated for this purpose after giving effect
to
the reduction on such Distribution Date of the aggregate Certificate Principal
Balance of the Group II Senior Certificates and Group II Mezzanine Certificates
resulting from the payment of the Principal Remittance Amount on such
Distribution Date, but prior to allocation of any Applied Loss Amount on such
Distribution Date.
Overcollateralization
Increase Amount:
With
respect to any Distribution Date, the excess, if any, of (a) the Required
Overcollateralization Amount over (b) the Group I Overcollateralization Amount
on such Distribution Date.
Overcollateralization
Reduction Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Funds for
such
Distribution Date and (y) the excess, if any, of (i) the Group I
Overcollateralization Amount for such Distribution Date over (ii) the Required
Overcollateralization Amount for such Distribution Date.
Overcollateralization
Release Amount:
With
respect to any Distribution Date, will be equal to the lesser of (x) the
Principal Remittance Amount for such Distribution Date and (y) the amount,
if
any, by which (1) the Group II Overcollateralization Amount for such date,
exceeds (2) the Targeted Overcollateralization Amount for such Distribution
Date.
Ownership
Interest:
As to
any Certificate, any ownership interest in such Certificate including any
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial.
Pass-Through
Rate:
The
Class I-A-1, Class I-A-2, Class I-A-3, Class I-A-4, Class I-M-1, Class I-M-2,
Class I-M-3, Class I-X, Class II-1-A, Class II-2-A-1A, Class II-2-A-1B, Class
II-2-A-2, Class II-2-A-3, Class II-2-A-4A, Class II-2-A-4B, II-M-1, Class
II-M-2, Class II-M-3, Class II-M-4, Class II-M-5, Class II-M-6, Class II-M-7,
Class II-M-8 and Class II-X Pass-Through Rate, as applicable.
Payahead:
Any
Scheduled Payment intended by the related Mortgagor to be applied in a Due
Period subsequent to the Due Period in which such payment was
received.
PCAOB:
Shall
mean the Public Company Accounting Oversight Board.
Percentage
Interest:
With
respect to any Certificate of a specified Class, the Percentage Interest set
forth on the face thereof or the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of such Class.
Periodic
Rate Cap:
With
respect to the Adjustment Date for a Group II Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note, which is the maximum amount
by which the Mortgage Rate for such Group II Mortgage Loan may increase or
decrease (without regard to the Maximum Mortgage Interest Rate or the Minimum
Mortgage Interest Rate) on such Adjustment Date from the Mortgage Rate in effect
immediately prior to such Adjustment Date.
Permitted
Investments:
At any
time, any one or more of the following obligations and securities:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency thereof, provided
such obligations are unconditionally backed by the full faith and credit of
the
United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each Rating
Agency, as evidenced by a signed writing delivered by each Rating
Agency;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency that rates such securities,
or such lower rating as will not result in the downgrading or withdrawal of
the
ratings then assigned to the Certificates by each Rating Agency, as evidenced
by
a signed writing delivered by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities (including the Trustee or the Master
Servicer in its commercial banking capacity), provided that the commercial
paper
and/or long term unsecured debt obligations of such depository institution
or
trust company are then rated one of the two highest long-term and the highest
short-term ratings of each such Rating Agency for such securities, or such
lower
ratings as will not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any Rating Agency, as evidenced by a signed
writing delivered by each Rating Agency;
(v) demand
or
time deposits or certificates of deposit issued by any bank or trust company
or
savings institution to the extent that such deposits are fully insured by the
FDIC;
(vi) guaranteed
reinvestment agreements issued by any bank, insurance company or other
corporation containing, at the time of the issuance of such agreements, such
terms and conditions as will not result in the downgrading or withdrawal of
the
rating then assigned to the Certificates by any such Rating Agency, as evidenced
by a signed writing delivered by each Rating Agency;
(vii) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (v) above;
(viii) securities
(other than stripped bonds, stripped coupons or instruments sold at a purchase
price in excess of 115% of the face amount thereof) bearing interest or sold
at
a discount issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such investment, have one
of
the two highest long term ratings of each Rating Agency, or such lower rating
as
will not result in the downgrading or withdrawal of the rating then assigned
to
the Certificates by any Rating Agency, as evidenced by a signed writing
delivered by each Rating Agency;
(ix) units
of
money market funds registered under the Investment Company Act of 1940 including
funds managed or advised by the Trustee, the Master Servicer or an affiliate
of
either, having a rating by S&P of AAAm-G or AAAm, if rated by Xxxxx’x, rated
Aaa, Aa1 or Aa2, and if rated by Fitch, F1, F2 or F3;
(x) short
term investment funds sponsored by any trust company or banking association
incorporated under the laws of the United States or any state thereof (including
any such fund managed or advised by the Trustee, the Master Servicer or any
affiliate thereof) which on the date of acquisition has been rated by each
Rating Agency in their respective highest applicable rating category or such
lower rating as will not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by each Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency; and
(xi) such
other investments having a specified stated maturity and bearing interest or
sold at a discount acceptable to each Rating Agency as will not result in the
downgrading or withdrawal of the rating then assigned to the Certificates by
any
Rating Agency, as evidenced by a signed writing delivered by each Rating Agency,
as evidenced by a signed writing delivered by each Rating Agency;
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
Permitted
Transferee:
Any
person other than (i) the United States, any State or political subdivision
thereof, any possession of the United States or any agency or instrumentality
of
any of the foregoing, (ii) a foreign government, International Organization
or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in Section 521 of the Code)
that is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on
any excess inclusions (as defined in Section 860E(c)(1) of the Code) with
respect to any Residual Certificate, (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) a Person
that is not a citizen or resident of the United States, a corporation,
partnership (other than a partnership that has any direct or indirect foreign
partners) or other entity (treated as a corporation or a partnership for federal
income tax purposes), created or organized in or under the laws of the United
States, any state thereof or the District of Columbia, an estate whose income
from sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States, or a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have authority
to control all substantial decisions of the trustor and (vi) any other Person
based upon an Opinion of Counsel (which shall not be an expense of the Trustee)
that states that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause any REMIC to fail to qualify as a REMIC at any time
that any Certificates are Outstanding. The terms “United States,” “State” and
“International Organization” shall have the meanings set forth in
Section 7701 of the Code or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject
to
tax and, with the exception of Xxxxxxx Mac, a majority of its board of directors
is not selected by such government unit.
Person:
Any
individual, corporation, partnership, joint venture, association,
joint-stock
company, limited liability company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Prepayment
Assumption:
The
assumed rate of prepayment, as described in the Prospectus Supplement relating
to each Class of Publicly Offered Certificates.
Prepayment
Charge:
With
respect to any Principal Prepayment, any prepayment premium, penalty or charge
payable by a Mortgagor in connection with any Principal Prepayment on a Mortgage
Loan pursuant to the terms of the related Mortgage Note (other than any Servicer
Prepayment Charge Payment Amount) as shown on the Prepayment Charge
Schedule.
Prepayment
Charge Schedule:
As of
any date, the list of Mortgage Loans providing for a Prepayment Charge included
in the Trust Fund on such date, attached hereto as Exhibit R (including the
prepayment charge summary attached thereto). The Depositor shall deliver or
cause the delivery of the Prepayment Charge Schedule to the Servicers, the
Master Servicer and the Trustee on the Closing Date. The Prepayment Charge
Schedule shall set forth the following information with respect to each
Prepayment Charge:
|
(i)
|
the
Mortgage Loan identifying number;
|
|
|
(ii)
|
a
code indicating the type of Prepayment Charge;
|
|
|
(iii)
|
the
date on which the first Monthly Payment was due on the related Mortgage
Loan;
|
|
|
(iv)
|
the
term of the related Prepayment Charge;
|
|
|
(v)
|
the
original Stated Principal Balance of the related Mortgage Loan;
and
|
|
|
(vi)
|
the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
|
Prepayment
Interest Shortfall:
With
respect to any Distribution Date, for each Mortgage Loan that was the subject
of
a Principal Prepayment in full during the related Prepayment Period, (other
than
a Principal Prepayment in full or in part resulting from the purchase of a
Mortgage Loan pursuant to Section 2.02, 2.03, 3.24 or 10.01 hereof), the
amount, if any, by which (i) one month’s interest at the applicable Net Mortgage
Rate on the Stated Principal Balance of such Mortgage Loan immediately prior
to
such prepayment exceeds (ii) the amount of interest paid or collected in
connection with such Principal Prepayment less the sum of (a) the related
Servicing Fee, (b) the Master Servicer Fee and (c) the fee payable to any
provider of lender-paid mortgage insurance, if any.
Prepayment
Period:
With
respect to any Distribution Date and the GMACM Mortgage Loans serviced by GMACM,
the 14th
day of
the immediately preceding calendar month through the 13th
day of
the month in which such Distribution Date occurs. With respect to any
Distribution Date and the Xxxxx Fargo Mortgage Loans, as set forth in the
Servicing Agreement.
Principal
Payment Amount:
With
respect to any Distribution Date and the Group II-1 Mortgage Loans and Group
II-2 Mortgage Loans, the Principal Remittance Amount for such Distribution
Date
minus the Overcollateralization Release Amount, if any, for such Distribution
Date, pro rata based on the Principal Remittance Amount derived from the related
Group II Mortgage Loans.
Principal
Distribution Amount:
With
respect to each Distribution Date and the Group I Certificates, the sum of
(i)
Principal Funds for such Distribution Date, plus (ii) the Extra Principal
Distribution Amount for such Distribution Date minus
(iii)
the amount of any Overcollateralization Reduction Amount for such Distribution
Date. In no event will the Principal Distribution Amount with respect to any
Distribution Date be (x) less than zero or (y) greater than the then outstanding
aggregate Certificate Principal Balance of the Group I Senior Certificates
and
Group I Mezzanine Certificates.
Principal
Funds:
With
respect to any Distribution Date and Loan Group I, (i) the sum, without
duplication, of (a) all scheduled principal collected during the related Due
Period, (b) all Advances relating to principal made on or prior to the
Remittance Date or, with respect to the Master Servicer or the Trustee on the
Distribution Date, (c) Principal Prepayments exclusive of prepayment charges
or
penalties collected during the related Prepayment Period, (iii) the Stated
Principal Balance of each Group I Mortgage Loan that was repurchased by the
Sponsor pursuant to Sections 2.02, 2.03 and 3.24, (d) the aggregate of all
Substitution Adjustment Amounts for the related Determination Date in connection
with the substitution of Group I Mortgage Loans pursuant to
Section 2.03(b), (e) amounts in respect of principal paid by the Master
Servicer pursuant to Section 10.01 and (f) all Liquidation Proceeds and
Subsequent Recoveries collected during the related Prepayment Period (to the
extent such Liquidation Proceeds and Subsequent Recoveries relate to principal),
in each case to the extent remitted by the Servicers to the Distribution Account
pursuant to this Agreement minus (ii) all amounts required to be reimbursed
by
the Trust Fund pursuant to Section 3.32 or as otherwise set forth in this
Agreement or the Custodial Agreement to the extent not reimbursed from the
Interest Remittance Amount relating to Loan Group I.
Principal
Remittance Amount:
With
respect to any Distribution Date and the Group II-1 Mortgage Loans and Group
II-2 Mortgage Loans, (i) the sum, without duplication, of (a) the principal
portion of all Scheduled Payments on the related Group II Mortgage Loans due
during the related Due Period whether or not received on or prior to the related
Determination Date, (b) the principal portion of all unscheduled collections
(other than Payaheads) including Insurance Proceeds, Condemnation Proceeds
and
all full and partial Principal Prepayments exclusive of prepayment charges
or
penalties collected during the related Prepayment Period, to the extent applied
as recoveries of principal on the related Group II Mortgage Loans, (c) the
Stated Principal Balance of each related Group II Mortgage Loan that was
repurchased by the Sponsor during the related Prepayment Period pursuant to
Sections 2.02, 2.03 and 3.24, (d) the aggregate of all Substitution
Adjustment Amounts received during the related Prepayment Period for the related
Determination Date in connection with the substitution of Group II Mortgage
Loans pursuant to Section 2.03(b), (e) amounts in respect of principal on
the related Group II Mortgage Loans paid by the Master Servicer pursuant to
Section 10.01, (f) all Liquidation Proceeds and Subsequent Recoveries with
respect to the related Group II Mortgage Loans collected during the related
Prepayment Period (to the extent such Liquidation Proceeds and Subsequent
Recoveries relate to principal), in each case to the extent remitted by the
Servicers to the Distribution Account pursuant to this Agreement and (g) the
principal portion of Payaheads previously received of the related Group II
Mortgage Loans and intended for application in the related Due Period minus
(ii)
all amounts required to be reimbursed by the Trust Fund pursuant to
Sections 4.02, 4.05, 4.07 and 9.05 or as otherwise set forth in this
Agreement or any Custodial Agreement.
Private
Certificate:
Each of
the Class I-X, Class I-P, Class I-R, Class I-R-X, Class II-X, Class II-P, Class
II-R and Class II-R-X Certificates.
Prospectus
Supplement:
The
Prospectus Supplement dated January 29, 2007 relating to the offering of the
Publicly Offered Certificates.
Publicly
Offered Certificates:
Any
Certificates other than the Private Certificates.
PUD:
A
planned unit development.
Purchase
Price:
With
respect to any Mortgage Loan required to be repurchased by the Sponsor pursuant
to Section 2.02, 2.03 or 3.24 hereof and as confirmed by an Officer’s
Certificate from the Sponsor to the Trustee, an amount equal to the sum of
(i)
100% of the outstanding principal balance of the Mortgage Loan as of the date
of
such purchase plus, (ii) thirty (30) days’ accrued interest thereon at the
applicable Net Mortgage Rate, plus any portion of the Servicing Fee, Servicing
Advances and Advances payable to the related Servicer or Master Servicer, as
applicable, with respect to such Mortgage Loan plus (iii) any costs and damages
of the Trust Fund in connection with any violation by such Mortgage Loan of
any
abusive or predatory lending law, including any expenses incurred by the Trustee
with respect to such Mortgage Loan prior to the purchase thereof.
Rating
Agency:
Each of
Xxxxx’x and S&P. If any such organization or its successor is no longer in
existence, “Rating Agency” shall be a nationally recognized statistical rating
organization, or other comparable Person, designated by the Depositor, notice
of
which designation shall be given to the Trustee. References herein to a given
rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized
Loss:
With
respect to each Mortgage Loan as to which a Final Recovery Determination has
been made, an amount (not less than zero) equal to (i) the Stated Principal
Balance of such Mortgage Loan as of the commencement of the calendar month
in
which the Final Recovery Determination was made, plus (ii) accrued interest
from
the Due Date as to which interest was last paid by the Mortgagor through the
end
of the calendar month in which such Final Recovery Determination was made,
calculated in the case of each calendar month during such period (A) at an
annual rate equal to the annual rate at which interest was then accruing on
such
Mortgage Loan and (B) on a principal amount equal to the Stated Principal
Balance of such Mortgage Loan as of the close of business on the Distribution
Date during such calendar month, minus (iii) the proceeds, if any, received
in
respect of such Mortgage Loan during the calendar month in which such Final
Recovery Determination was made, net of amounts that are payable therefrom
to a
Servicer pursuant to this Agreement or the Servicing Agreement. To the extent
a
Servicer receives Subsequent Recoveries with respect to any Mortgage Loan,
the
amount of the Realized Loss with respect to that Mortgage Loan will be reduced
to the extent that Subsequent Recoveries are applied to reduce the Certificate
Principal Balance of any Class of Certificates on any Distribution
Date.
With
respect to any REO Property as to which a Final Recovery Determination has
been
made, an amount (not less than zero) equal to (i) the Stated Principal Balance
of the related Mortgage Loan as of the date of acquisition of such REO Property
on behalf of REMIC I, plus (ii) accrued interest from the Due Date as to which
interest was last paid by the Mortgagor in respect of the related Mortgage
Loan
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, calculated in the case of each calendar
month during such period (A) at an annual rate equal to the annual rate at
which
interest was then accruing on the related Mortgage Loan and (B) on a principal
amount equal to the Stated Principal Balance of the related Mortgage Loan as
of
the close of business on the Distribution Date during such calendar month,
minus
(iii) the aggregate of all unreimbursed Advances and Servicing
Advances.
With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation.
With
respect to each Mortgage Loan which has become the subject of a Debt Service
Reduction, the portion, if any, of the reduction in each affected Monthly
Payment attributable to a reduction in the Mortgage Rate imposed by a court
of
competent jurisdiction. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
In
addition, to the extent a Servicer receives Subsequent Recoveries with respect
to any Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such Subsequent Recoveries are
applied to reduce the Certificate Principal Balance of any Class of Certificates
on any Distribution Date.
Record
Date:
With
respect to the Group I Certificates (other than the Class I-A-4 Certificates
and
Class I-M-3 Certificates), the Class II-P, Class II-X, Class II-R and Class
II-R-X Certificates and any Distribution Date, the close of business on the
last
Business Day of the month preceding the month in which such Distribution Date
occurs. With respect to the Class I-A-4 Certificates and Class I-M-3
Certificates and the Group II Certificates (other than the Class II-X, Class
II-P, Class II-R and Class II-R-X Certificates) and any Distribution Date,
so
long as such Certificates are Book-Entry Certificates, the Business Day
preceding such Distribution Date, and otherwise, the close of business on the
last Business Day of the month preceding the month in which such Distribution
Date occurs.
Reference
Bank Rate:
With
respect to any Accrual Period shall mean the arithmetic mean, rounded upwards,
if necessary, to the nearest whole multiple of 0.03125%, of the offered rates
for United States dollar deposits for one month that are quoted by the Reference
Banks as of 11:00 a.m., New York City time, on the related Interest
Determination Date to prime banks in the London interbank market for a period
of
one month in an amount approximately equal to the aggregate Certificate
Principal Balance of the Class I-A-4 Certificates and the Class I-M-3
Certificates or the Group II Offered Certificates, as applicable, for such
Accrual Period, provided that at least two such Reference Banks provide such
rate. If fewer than two offered rates appear, the Reference Bank Rate will
be
the arithmetic mean, rounded upwards, if necessary, to the nearest whole
multiple of 0.03125%, of the rates quoted by one or more major banks in New
York
City, selected by the Securities Administrator, as of 11:00 a.m., New York
City
time, on such date for loans in United States dollars to leading European banks
for a period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of the Class I-A-4 Certificates and the Class
I-M-3 Certificates or the Group II Offered Certificates, as
applicable.
Reference
Banks:
Shall
mean leading banks selected by the Securities Administrator and engaged in
transactions in Eurodollar deposits in the international Eurocurrency market
(i)
with an established place of business in London, (ii) which have been designated
as such by the Securities Administrator and (iii) which are not controlling,
controlled by, or under common control with, the Depositor, the Sponsor or
the
Servicer.
Regular
Certificate:
Any
Group I Regular Certificate or Group II Regular Certificate.
Regulation
AB:
Means
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relevant
Servicing Criteria:
Means
with respect to any Servicing Function Participant, the Servicing Criteria
applicable to such party, as set forth on Exhibit
L
attached
hereto. For clarification purposes, multiple parties can have responsibility
for
the same Relevant Servicing Criteria. With respect to a Servicing Function
Participant engaged by the Master Servicer, the Securities Administrator or
the
Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the
Relevant Servicing Criteria applicable to such party.
Relief
Act:
The
Servicemembers Civil Relief Act of 2003, as amended from time to time or similar
state or local laws.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
REMIC IA:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, with respect to which a REMIC election
is to be made, consisting of (i) the Group I Mortgage Loans and all interest
accruing and principal due with respect thereto after the Cut-off Date to the
extent not applied in computing the Cut-off Date Principal Balance thereof
and
all related Prepayment Charges; (ii) the related Mortgage Files, (iii) the
related Custodial Accounts (other than any amounts representing any Servicer
Prepayment Charge Payment Amount), the related sub-account of the Distribution
Account, the Class I-P Certificate Account and such assets that are deposited
therein from time to time, together with any and all income, proceeds and
payments with respect thereto; (iv) property that secured a Group I Mortgage
Loan and has been acquired by foreclosure, deed in lieu of foreclosure or
otherwise; (v) the mortgagee’s rights under the Insurance Policies with respect
to the Group I Mortgage Loans; (vi) the rights under the Mortgage Loan Purchase
Agreement to the extent of the Group I Mortgage Loans, and (vii) all proceeds
of
the foregoing, including proceeds of conversion, voluntary or involuntary,
of
any of the foregoing into cash or other liquid property. Notwithstanding the
foregoing, however, REMIC IA specifically excludes (i) all payments and
other collections of principal and interest due on the Group I Mortgage Loans
on
or before the Cut-off Date, (ii) all Prepayment Charges payable in connection
with Principal Prepayments on the Group I Mortgage Loans made before the Cut-off
Date, (iii) the Net WAC Reserve Fund, (iv) the Cap Contracts, (v) the Group
I
Swap Agreement, and (vi) the Supplemental Interest Trust.
REMIC IA
Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC IA
issued hereunder and designated as a “regular interest” in REMIC IA. Each
REMIC IA Regular Interest shall accrue interest at the related
Uncertificated REMIC IA Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto. The
designations for the respective REMIC IA Regular Interests are set forth in
the Preliminary Statement hereto.
REMIC IB:
The
segregated pool of assets consisting of all of the REMIC IA Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC IB
Regular Interests pursuant to Section 2.07, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC IB
Interest Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to (a) the product of (i)
the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties
then
outstanding and (ii) the Uncertificated REMIC IB Pass-Through Rate for
REMIC IB Regular Interest LTI-AA minus the Group I Marker Rate, divided by
(b) 12.
REMIC IB
Marker Allocation Percentage:
50% of
any amount payable or loss attributable from the Mortgage Loans, which shall
be
allocated to REMIC IB Regular Interest LTI-AA, REMIC IB Regular
Interest LTI-IA1, REMIC IB Regular Interest LTI-IA2, REMIC IB Regular
Interest LTI-IA3, REMIC IB Regular Interest LTI-IA4, REMIC IB Regular
Interest LTI-IM1, REMIC IB Regular Interest LTI-IM2, REMIC IB Regular
Interest LTI-IM3 and REMIC IB Regular Interest LTI-IZZ.
REMIC IB
Overcollateralization Amount:
With
respect to any date of determination, (i) 0.50% of the aggregate Uncertificated
Principal Balances of the REMIC IB Regular Interests minus (ii) the
aggregate of the Uncertificated Principal Balances of REMIC IB Regular
Interest LTI-IA1, REMIC IB Regular Interest LTI-IA2, REMIC IB Regular
Interest LTI-IA3, REMIC IB Regular Interest LTI-IA4, REMIC IB Regular
Interest LTI-IM1, REMIC IB Regular Interest LTI-IM2, REMIC IB Regular
Interest LTI-IM3 and REMIC IB Regular Interest LTI-IP, in each case as of
such date of determination.
REMIC IB
Principal Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to (a) the product of (i)
0.50% of aggregate Stated Principal Balance of the Mortgage Loans and REO
Properties then outstanding and (ii) 1 minus a fraction, the numerator of which
is two times the aggregate of the Uncertificated Principal Balances of
REMIC IB Regular Interest LTI-IA1, REMIC IB Regular Interest LTI-IA2,
REMIC IB Regular Interest LTI-IA3, REMIC IB Regular Interest LTI-IA4,
REMIC IB Regular Interest LTI-IM1, REMIC IB Regular Interest LTI-IM2
and REMIC IB Regular Interest LTI-IM3 and the denominator of which is the
aggregate of the Uncertificated Principal Balances of REMIC IB Regular
Interest LTI-IA1, REMIC IB Regular Interest LTI-IA2, REMIC IB Regular
Interest LTI-IA3, REMIC IB Regular Interest LTI-IA4, REMIC IB Regular
Interest LTI-IM1, REMIC IB Regular Interest LTI-IM2, REMIC IB Regular
Interest LTI-IM3 and REMIC IB Regular Interest LTI-IZZ.
REMIC IB
Regular Interests:
REMIC IB Regular Interest LTI-AA, REMIC IB Regular Interest LTI-IA1,
REMIC IB Regular Interest LTI-IA2, REMIC IB Regular Interest LTI-IA3,
REMIC IB Regular Interest LTI-IA4, REMIC IB Regular Interest LTI-IM1,
REMIC IB Regular Interest LTI-IM2, REMIC IB Regular Interest LTI-IM3,
REMIC IB Regular Interest LTI-IZZ, REMIC IB Regular Interest LTI-IP,
REMIC IB Regular Interest LTI-SC, REMIC IB Regular Interest LTI-NSC,
REMIC IB Regular Interest LTI-IXX and REMIC IB Regular Interest
LTI-I-IO.
REMIC IB
Regular Interest LTI-AA:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-AA shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-IA1:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-IA1
shall
accrue interest at the related Uncertificated REMIC IB Pass-Through Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Principal Balance as set forth in the
Preliminary
Statement hereto.
REMIC IB
Regular Interest LTI-IA2:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-IA2 shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-IA3:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-IA3 shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-IA4:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-IA4 shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-I-IO:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-I-IO shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time,
subject to the terms and conditions hereof.
REMIC IB
Regular Interest LTI-IM1:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-IM1 shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-IM2:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-IM2 shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-IM3:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-IM3 shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-NSC:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-NSC shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-SC:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-SC shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-IP:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-IP shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-IXX:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-IXX shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-IZZ:
One of
the separate non-certificated beneficial ownership interests in REMIC IB
issued hereunder and designated as a Regular Interest in REMIC IB.
REMIC IB Regular Interest LTI-IZZ shall accrue interest at the related
Uncertificated REMIC IB Pass-Through Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
REMIC IB
Regular Interest LTI-IZZ Maximum Interest Deferral Amount:
With
respect to any Distribution Date, the excess of (i) accrued interest at the
Uncertificated REMIC IB Pass-Through Rate applicable to REMIC IB
Regular Interest LTI-IZZ for such Distribution Date on a balance equal to the
Uncertificated Principal Balance of REMIC IB Regular Interest LTI-IZZ minus
the REMIC IB Overcollateralization Amount, in each case for such
Distribution Date, over (ii) the Uncertificated Accrued Interest on
REMIC IB Regular Interest LTI-IA1, REMIC IB Regular Interest LTI-IA2,
REMIC IB Regular Interest LTI-IA3, REMIC IB Regular Interest LTI-IA4,
REMIC IB Regular Interest LTI-IM1, REMIC IB Regular Interest LTI-IM2
and REMIC IB Regular Interest LTI-IM3 for such Distribution Date, with the
rate on each such REMIC IB Regular Interest subject to a cap equal to the
related Pass-Through Rate; provided, however, that for this purpose, the
calculation of the Uncertificated REMIC IB Pass-Through Rate and the
related cap with respect to REMIC IB Regular Interest LTI-IA4 and
REMIC IB Regular Interest LTI-IM3 shall be multiplied by a fraction, the
numerator of which is the actual number of days in the Accrual Period and the
denominator of which is thirty (30).
REMIC IB
SC
Allocation Percentage:
50% of
any amount payable or loss attributable from the Mortgage Loans, which shall
be
allocated to REMIC IB Regular Interest LTI-SC, REMIC IB Regular
Interest LTI-NSC and REMIC IB Regular Interest LTI-IXX.
REMIC IB
Required Overcollateralization Amount:
0.50%
of the Required Overcollateralization Amount.
REMIC
IC:
The
segregated pool of assets consisting of all of the REMIC IB Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC IC
Certificateholders pursuant to Section 2.07, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC
IC Certificate:
Any
Group I Regular Certificate (other than the Class I-X Certificates and the
Class
I-P certificates) or Class I-R Certificate.
REMIC
IC Certificateholder:
The
Holder of any REMIC IC Certificate.
REMIC
IC Regular Interest:
Any of
the Class I-X Interest, Class I-P Interest, Class I-IO Interest, and any
“regular interest” in REMIC IC the ownership of which is represented by a Group
I Senior Certificate or Group I Subordinate Certificate.
REMIC
ID:
The
segregated pool of assets consisting of all the Class I-X Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class I-X
Certificates and the Class I-R-X Certificate (in respect of the Class R-1D
Interest), pursuant to Section 2.07 hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC
IE:
The
segregated pool of assets consisting of all of the Class I-P Interest conveyed
in trust to the Trustee, for the benefit of the Holders of the Class I-P
Certificates and the Holders of the Class I-R-X Certificate (in respect of
the
Class R-1E Interest), pursuant to Section 2.07 hereunder, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
REMIC
IF:
The
segregated pool of assets consisting of all of the Class I-IO Interest conveyed
in trust to the Trustee, for the benefit of the Holders of REMIC IF Regular
Interest Swap-IO and the Holders of the Class I-R-X Certificate (in respect
of
the Class R-1F Interest), pursuant to Section 2.07, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
REMIC
IF Regular Interest Swap-IO:
An
uncertificated interest in the Trust Fund held by the Trustee, evidencing a
Regular Interest in REMIC IF for purposes of the REMIC Provisions.
REMIC
IIA:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, with respect to which a REMIC election
is to be made, consisting of (i) the Group II Mortgage Loans and all interest
accruing and principal due with respect thereto after the Cut-off Date to the
extent not applied in computing the Cut-off Date Principal Balance thereof
and
all related Prepayment Charges; (ii) the related Mortgage Files, (iii)
the
related Custodial Account (other than any amounts representing any Servicer
Prepayment Charge Payment Amount), the related sub-account of the Distribution
Account, the Class II-P Certificate Account and such assets that are deposited
therein from time to time, together with any and all income, proceeds and
payments with respect thereto; (iv) property that secured a Group II Mortgage
Loan and has been acquired by foreclosure, deed in lieu of foreclosure or
otherwise; (v) the mortgagee’s rights under the Insurance Policies with respect
to the Group II Mortgage Loans; (vi) the rights under the related Mortgage
Loan
Purchase Agreement with respect to the Group II Mortgage Loans, and (vii) all
proceeds of the foregoing, including proceeds of conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
Notwithstanding
the foregoing, however, REMIC IIA specifically excludes (i) all payments and
other collections of principal and interest due on the Group II Mortgage Loans
on or before the Cut-off Date, (ii) all Prepayment Charges payable in connection
with Principal Prepayments on the Group II Mortgage Loans made before the
Cut-off Date, (iii) the Basis Risk Shortfall Reserve Fund, (iv) the Group II
Swap Agreement and (v) the Supplemental Interest Trust.
REMIC
IIA Group II-1 Regular Interests:
REMIC
IIA Regular Interest I and REMIC IIA Regular Interest I-1-A through REMIC IIA
Regular Interest I-60-B as designated in the Preliminary Statement
hereto.
REMIC
IIA Group II-2 Regular Interests:
REMIC
IIA Regular Interest II and REMIC IIA Regular Interest II-1-A through REMIC
I
Regular Interest II-60-B as designated in the Preliminary Statement
hereto.
REMIC
IIA Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC IIA issued
hereunder and designated as a “regular interest” in REMIC IIA. Each REMIC IIA
Regular Interest shall accrue interest at the related Uncertificated REMIC
IIA
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto. The designations for the respective
REMIC IIA Regular Interests are set forth in the Preliminary Statement
hereto.
REMIC
IIB:
The
segregated pool of assets consisting of all of the REMIC IIA Regular Interests
conveyed in trust to the Trustee, for the benefit of the Holders of the REMIC
IIB Regular Interests and the Holders of the Class II-R Certificates (as holders
of the Class R-2B Interest), pursuant to Article II hereunder, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
REMIC
IIB 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 related
REO Properties then outstanding and (ii) the Uncertificated REMIC IIB
Pass-Through Rate for REMIC IIB Regular Interest LTII-AA minus the Group II
Marker Rate, divided by (b) 12.
REMIC
IIB Marker Allocation Percentage:
50% of
any amount payable or loss attributable from the Mortgage Loans, which shall
be
allocated to REMIC IIB Regular Interest LTII-AA, REMIC IIB Regular Interest
LTII-IA1, REMIC IIB Regular Interest LTII-IIA1A, REMIC IIB Regular Interest
LTII-IIA1B, REMIC IIB Regular Interest LTII-IIA2, REMIC IIB Regular Interest
LTII-IIA3, REMIC IIB Regular Interest LTII-IIA4A, REMIC IIB Regular Interest
LTII-IIA4B, REMIC IIB Regular Interest LTII-IIM1, REMIC IIB Regular Interest
LTII-IIM2, REMIC IIB Regular Interest LTII-IIM3, REMIC IIB Regular Interest
LTII-IIM4, REMIC IIB Regular Interest LTII-IIM5, REMIC IIB Regular Interest
LTII-IIM6, REMIC IIB Regular Interest LTII-IIM7, REMIC IIB Regular Interest
LTII-IIM8 and REMIC IBI Regular Interest LTII-ZZ.
REMIC
IIB Overcollateralization Amount:
With
respect to any date of determination, (i) the 50% of the aggregate
Uncertificated Principal Balances of the REMIC IIB Regular Interests minus
(ii)
the aggregate of the Uncertificated Principal Balances of REMIC IIB Regular
Interest LTII-IA1, REMIC IIB Regular Interest LTII-IIA1A, REMIC IIB Regular
Interest LTII-IIA1B, REMIC IIB Regular Interest LTII-IIA2, REMIC IIB Regular
Interest LTII-IIA3, REMIC IIB Regular Interest LTII-IIA4A, REMIC IIB Regular
Interest LTII-IIA4B, REMIC IIB Regular Interest LTII-IIM1, REMIC IIB Regular
Interest LTII-IIM2, REMIC IIB Regular Interest LTII-IIM3, REMIC IIB Regular
Interest LTII-IIM4, REMIC IIB Regular Interest LTII-IIM5, REMIC IIB Regular
Interest LTII-IIM6, REMIC IIB Regular Interest LTII-IIM7, REMIC IIB Regular
Interest LTII-IIM8 and REMIC IIB Regular Interest LTII-IIP, in each case as
of
such date of determination.
REMIC
IIB Principal Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to (a) the product of (i)
the
aggregate 50% of the Stated Principal Balance of the Group II Mortgage Loans
and
related REO Properties then outstanding and (ii) 1 minus a fraction, the
numerator of which is two times the aggregate of the Uncertificated Principal
Balances of REMIC IIB Regular Interest LTII-IA1, REMIC IIB Regular Interest
LTII-IIA1A, REMIC IIB Regular Interest LTII-IIA1B, REMIC IIB Regular Interest
LTII-IIA2, REMIC IIB Regular Interest LTII-IIA3, REMIC IIB Regular Interest
LTII-IIA4A, REMIC IIB Regular Interest LTII-IIA4B, REMIC IIB Regular Interest
LTII-IIM1, REMIC IIB Regular Interest LTII-IIM2, REMIC IIB Regular Interest
LTII-IIM3, REMIC IIB Regular Interest LTII-IIM4, REMIC IIB Regular Interest
LTII-IIM5, REMIC IIB Regular Interest LTII-IIM6, REMIC IIB Regular Interest
LTII-IIM7, REMIC IIB Regular Interest LTII-IIM8 and REMIC IIB Regular Interest
LTII-ZZ.
REMIC
IIB Regular Interests:
REMIC
IIB Regular Interest LTII-AA, REMIC IIB Regular Interest LTII-IA1, REMIC IIB
Regular Interest LTII-IIA1A, REMIC IIB Regular Interest LTII-IIA1B, REMIC IIB
Regular Interest LTII-IIA2, REMIC IIB Regular Interest LTII-IIA3, REMIC IIB
Regular Interest LTII-IIA4A, REMIC IIB Regular Interest LTII-IIA4B, REMIC IIB
Regular Interest LTII-IIM1, REMIC IIB Regular Interest LTII-IIM2, REMIC IIB
Regular Interest LTII-IIM3, REMIC IIB Regular Interest LTII-IIM4, REMIC IIB
Regular Interest LTII-IIM5, REMIC IIB Regular Interest LTII-IIM6, REMIC IIB
Regular Interest LTII-IIM7, REMIC IIB Regular Interest LTII-IIM8, REMIC IIB
Regular Interest LTII-ZZ and REMIC IIB Regular Interest LTII-IIP.
REMIC
IIB Regular Interest LTII-AA:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-AA shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IA1:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IA1 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIA1A:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIA1A shall accrue interest at the related Uncertificated REMIC
IIB Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIA1B:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIA1B shall accrue interest at the related Uncertificated REMIC
IIB Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIA2:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIA2 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIA3:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIA3 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIA4A:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIA4A shall accrue interest at the related Uncertificated REMIC
IIB Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIA4B:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIA4B shall accrue interest at the related Uncertificated REMIC
IIB Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIM1:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIM1 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIM2:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIM2 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIM3:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIM3 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIM4:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIM4 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIM5:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIM5 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIM6:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIM6 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIM7:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIM7 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIM8:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIM8 shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-1SUB:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-1SUB shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-1GRP:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-1GRP shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-2SUB:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-2SUB shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-2GRP:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-2GRP shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-IIP:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-IIP shall be entitled to distributions of principal, subject
to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
IIB Regular Interest LTII-II-IO:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-II-IO shall accrue interest at the related Uncertificated REMIC
IIB Pass-Through Rate in effect from time to time.
REMIC
IIB Regular Interest LTII-XX:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-XX shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-ZZ:
One of
the separate non-certificated beneficial ownership interests in REMIC IIB issued
hereunder and designated as a Regular Interest in REMIC IIB. REMIC IIB Regular
Interest LTII-ZZ shall accrue interest at the related Uncertificated REMIC
IIB
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
IIB Regular Interest LTII-ZZ Maximum Interest Deferral Amount:
With
respect to any Distribution Date, the excess of (i) accrued interest at the
Uncertificated REMIC IIB Pass-Through Rate applicable to REMIC IIB Regular
Interest LTII-ZZ for such Distribution Date on a balance equal to the
Uncertificated Principal Balance of REMIC IIB Regular Interest LTII-ZZ minus
the
REMIC IIB Overcollateralization Amount, in each case for such Distribution
Date,
over (ii) the Uncertificated Accrued Interest on REMIC IIB Regular Interest
LTII-IA1, REMIC IIB Regular Interest LTII-IIA1A, REMIC IIB Regular Interest
LTII-IIA1B, REMIC IIB Regular Interest LTII-IIA2, REMIC IIB Regular Interest
LTII-IIA3, REMIC IIB Regular Interest LTII-IIA4A, REMIC IIB Regular Interest
LTII-IIA4B, REMIC IIB Regular Interest LTII-IIM1, REMIC IIB Regular Interest
LTII-IIM2, REMIC IIB Regular Interest LTII-IIM3, REMIC IIB Regular Interest
LTII-IIM4, REMIC IIB Regular Interest LTII-IIM5, REMIC IIB Regular Interest
LTII-IIM6, REMIC IIB Regular Interest LTII-IIM7 and REMIC IIB Regular Interest
LTII-IIM8 for such Distribution Date, with the rate on each such REMIC IIB
Regular Interest subject to a cap equal to the related Pass-Through
Rate.
REMIC
IIB Sub WAC Allocation Percentage:
50% of
any amount payable or loss attributable from the Group 2 Mortgage Loans, which
shall be allocated to REMIC IIB Regular Interest LTII-1SUB, REMIC IIB Regular
Interest LTII-1GRP, REMIC IIB Regular Interest LTII-2SUB, REMIC IIB Regular
Interest LTII-2GRP and REMIC IIB Regular Interest LTII-XX.
REMIC
IIB Subordinated Balance Ratio:
The
ratio among the Uncertificated Principal Balances of each REMIC IIB Regular
Interest ending with the designation “SUB”, equal to the ratio between, with
respect to each such REMIC IIB Regular Interest, the excess of (x) the aggregate
Stated Principal Balance of the Group II-1 Mortgage Loans and the Group II-2
Mortgage Loans, as applicable, over (y) the current Certificate Principal
Balance of the related Senior Certificates.
REMIC
IIB Targeted Overcollateralization Amount:
0.50%
of the Targeted Overcollateralization Amount.
REMIC
IIC:
The
segregated pool of assets consisting of all of the REMIC IIB Regular Interests
conveyed in trust to the Trustee, for the benefit of the REMIC IIC
Certificateholders pursuant to Section 2.07, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC
IIC Certificate:
Any
Group II Certificate (other than the Class II-X Certificates and Class II-P
Certificates).
REMIC
IIC Certificateholder:
The
Holder of any REMIC IIC Certificate.
REMIC
IIC Regular Interest:
Any of
the Class II-X Interest, Class II-P Interest, Class II-IO Interest, and any
“regular interest” in REMIC IIC the ownership of which is represented by a Group
II Senior Certificate or Group II Mezzanine Certificate.
REMIC
IID:
The
segregated pool of assets consisting of all the Class II-X Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class II-X
Certificates and the Class II-R-X Certificate (in respect of the Class R-2D
Interest), pursuant to Section 2.07 hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC
IIE:
The
segregated pool of assets consisting of all of the Class II-P Interest conveyed
in trust to the Trustee, for the benefit of the Holders of the Class II-P
Certificates and the Holders of the Class II-R-X Certificate (in respect of
the
Class R-2E Interest), pursuant to Section 2.07 hereunder, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
REMIC
IIF:
The
segregated pool of assets consisting of all of the Class II-IO Interest conveyed
in trust to the Trustee, for the benefit of the Holders of REMIC IIF Regular
Interest IO and the Holders of the Class II-R-X Certificate (in respect of
the
Class R-2F Interest), pursuant to Section 2.07, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC
IIF Regular Interest IO:
An
uncertificated interest in the Trust Fund held by the Trustee, evidencing a
Regular Interest in REMIC IIF for purposes of the REMIC Provisions.
REMIC
Opinion:
Shall
mean an Opinion of Counsel to the effect that the proposed action will not
have
an adverse affect on any REMIC created hereunder.
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and proposed, temporary and
final regulations and published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to time as well as
provisions of applicable state laws.
REMIC
Regular Interest:
Any
REMIC IA Regular Interest, REMIC IB Regular Interest, REMIC IC Regular
Interest, REMIC IIA Regular Interest, REMIC IIB Regular Interest, REMIC IIC
Regular Interest, REMIC IF Regular Interest IO, REMIC IIF Regular Interest
IO or
a Regular Certificate.
Remittance
Date:
With
respect to the GMACM Mortgage Loans shall mean the eighteenth (18th)
day of
the month and if such day is not a Business Day, the immediately preceding
Business Day. With respect to the Xxxxx Fargo Mortgage Loans, as set forth
in
the Servicing Agreement.
REO
Property:
A
Mortgaged Property acquired by the Servicer through foreclosure or deed-in-lieu
of foreclosure in connection with a defaulted Mortgage Loan.
Replacement
Mortgage Loan:
A
Mortgage Loan or Mortgage Loans in the aggregate substituted by the Sponsor
for
a Deleted Mortgage Loan, which must, on the date of such substitution, as
confirmed in a request for release in accordance with the terms of the Custodial
Agreement, (i) have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in excess
of, and not less than 90% of, the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) (a) with respect to a Group I Mortgage Loan, have a fixed
Mortgage Rate not less than or more than 1% per annum higher than the Mortgage
Rate of the Deleted Mortgage Loan or (b) with respect to a Group II Mortgage
Loan, have an adjustable Mortgage Rate not less than or more than 1% per annum
higher than the Mortgage Rate of the Deleted Mortgage Loan; (iii) have the
same
or higher credit quality characteristics than that of the Deleted Mortgage
Loan;
(iv) have a Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan; (v) have a remaining term to maturity no greater than (and not more than
one year less than) that of the Deleted Mortgage Loan; (vi) be secured by a
first lien on the related Mortgaged Property; (vii) constitute the same
occupancy type as the Deleted Mortgage Loan or be owner occupied; (viii) with
respect to a Group II Mortgage Loan, have a Maximum Mortgage Interest Rate
not
less than the Maximum Mortgage Interest Rate on the Deleted Loan; (ix) with
respect to a Group II Mortgage Loan, have a Minimum Mortgage Interest Rate
not
less than the Minimum Mortgage Interest Rate of the Deleted Loan; (x) with
respect to a Group II Mortgage Loan, have a Gross Margin equal to the Gross
Margin of the Deleted Loan; (xi) with respect to a Group II Mortgage Loan,
have
a next Adjustment Date not more than two months later than the next Adjustment
Date on the Deleted Loan; (xii) comply with each representation and warranty
set
forth in the Mortgage Loan Purchase Agreement; and (xiii) with respect to any
Mortgage Loan, not permit conversion of the Mortgage Rate from a fixed rate
to a
variable rate.
Reportable
Event:
Has the
meaning set forth in Section 5.16(b) of this Agreement.
Reporting
Servicer:
Shall
mean any Servicer, the Master Servicer, the Securities Administrator, the
Custodian under the Custodial Agreement, and any Servicing Function Participant
engaged by such parties.
Required
Insurance Policy:
With
respect to any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Required
Overcollateralization Amount:
with
respect to any Distribution Date prior to the Group I Stepdown Date,
approximately 1.35% of the aggregate Stated Principal Balance of the Group
I
Mortgage Loans as of the Cut-off Date, and with respect to any Distribution
Date
on or after the Group I Stepdown Date and with respect to which a Group I
Trigger Event is not in effect, the greater of (i) approximately 2.70% of the
aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date and (ii) 0.35% of the aggregate Stated Principal Balance
of
the Group I Mortgage Loans as of the Cut-off Date; with respect to any
Distribution Date on or after the Group I Stepdown Date with respect to which
a
Group I Trigger Event is in effect, the Required Overcollateralization Amount
for such Distribution Date will be equal to the Required Overcollateralization
Amount for the Distribution Date immediately preceding such Distribution
Date.
Residual
Certificates:
The
Class I-R Certificates, the Class I-R-X, Class II-R and Class II-R-X
Certificates.
Responsible
Officer:
With
respect to the Trustee and the Securities Administrator, any Vice President,
any
Assistant Vice President, the Secretary, any Assistant Secretary, any Trust
Officer, any other officer customarily performing functions similar to those
performed by any of the above designated officers or other officers of the
Trustee or the Securities Administrator specified by the Trustee or the
Securities Administrator, as the case may be, having direct responsibility
over
this Agreement and customarily performing functions similar to those performed
by any one of the designated officers, as to whom, with respect to a particular
matter, such matter is referred because of such officer’s knowledge of and
familiarity with the particular subject.
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
equal
to the average of the Delinquency Rates for each of the three (or one and two,
in the case of the first and second Distribution Dates) immediately preceding
months.
S&P:
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. or its
successor in interest.
Xxxxxxxx-Xxxxx
Act:
Means
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
A
written certification signed by an officer of the Master Servicer that complies
with (i) the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time, and
(ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002
is
amended, (b) the Rules referred to in clause (ii) are modified or superseded
by
any subsequent statement, rule or regulation of the Commission or any statement
of a division thereof, or (c) any future releases, rules and regulations are
published by the Commission from time to time pursuant to the Xxxxxxxx-Xxxxx
Act
of 2002, which in any such case affects the form or substance of the required
certification and results in the required certification being, in the reasonable
judgment of the Master Servicer, materially more onerous than the form of the
required certification as of the Closing Date, the Xxxxxxxx-Xxxxx Certification
shall be as agreed to by the Master Servicer, the Depositor and the Sponsor
following a negotiation in good faith to determine how to comply with any such
new requirements.
Scheduled
Payment:
The
scheduled monthly payment on a Mortgage Loan due on any Due Date allocable
to
principal and/or interest on such Mortgage Loan.
Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
Securities
Administrator:
As of
the Closing Date, Xxxxx Fargo Bank, N.A. and thereafter, its respective
successors in interest that meet the qualifications of this Agreement. The
Securities Administrator and the Master Servicer shall at all times be the
same
Person or Affiliates.
Senior
Enhancement Percentage:
with
respect to any Distribution Date and the Group II Senior Certificates will
be
the fraction, expressed as a percentage, the numerator of which is the sum
of
the aggregate Certificate Principal Balance of the Group II Mezzanine
Certificates and the Group II Overcollateralization Amount, in each case after
giving effect to payments on such Distribution Date, and the denominator of
which is the Aggregate Loan Balance of the Group II Mortgage Loans for such
Distribution Date (after giving effect to scheduled payments of principal due
during the related Due Period to the extent received or advanced, unscheduled
collections of principal received during the related Prepayment Period and
after
reduction for Realized Losses on the Group II Mortgage Loans incurred during
the
related Due Period).
Senior
Principal Distribution Amount:
with
respect to any Distribution Date (i) prior to the Group I Stepdown Date or
on or
after the Group I Stepdown Date if a Group I Trigger Event is in effect, the
Principal Distribution Amount for that Distribution Date or (ii) on or after
the
Group I Stepdown Date if a Group I Trigger Event is not in effect for that
Distribution Date the amount, if any, by which (x) the aggregate Certificate
Principal Balance of the Group I Senior Certificates immediately prior to such
Distribution Date exceeds (y) the lesser of (A) the product of (i) approximately
82.80% and (ii) the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date and (B) the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Group I Mortgage Loans for such
Distribution Date exceeds (ii) 0.35% of the aggregate Stated Principal Balance
of the Group I Mortgage Loans as of the Cut-off Date.
Senior
Principal Payment Amount:
with
respect to any Distribution Date on or after the Group II Stepdown Date and
as
long as a Group II Trigger Event is not in effect with respect to such
Distribution Date, will be the amount, if any, by which (x) the aggregate
Certificate Principal Balance of the Group II Senior Certificates immediately
prior to such Distribution Date exceeds (y) the lesser of (A) the product of
(i)
approximately 85.60% and (ii) the Aggregate Loan Balance of the Group II
Mortgage Loans for such Distribution Date (after giving effect to scheduled
payments of principal due during the related Due Period to the extent received
or advanced, unscheduled collections of principal received during the related
Prepayment Period and after reduction for Realized Losses on the Group II
Mortgage Loans incurred during the related Due Period) and (B) the amount,
if
any, by which (i) the Aggregate Loan Balance of the Group II Mortgage Loans
for
such Distribution Date (after giving effect to scheduled payments of principal
due during the related Due Period to the extent received or advanced,
unscheduled collections of principal received during the related Prepayment
Period and after reduction for Realized Losses on the Group II Mortgage Loans
incurred during the related Due Period) exceeds (ii) 0.35% of the Aggregate
Loan
Balance of the Group II Mortgage Loans as of the Cut-off Date.
Senior
Sequential Allocation Percentage:
With
respect to any Distribution Date, a fraction, expressed as a percentage, the
numerator of which is the sum of the Certificate Principal Balances of the
Class
II-2-A-2, Class II-2-A-3, Class II-2-A-4A and Class II-2-A-4B Certificates
and
the denominator of which is the aggregate Certificate Principal Balance of
all
of the Group II-2 Senior Certificates, in each case immediately prior to such
Distribution Date.
Servicer:
Shall
mean either GMAC or Xxxxx Fargo or any successor thereto appointed hereunder
or
under the Servicing Agreement in connection with the servicing and
administration of the related Mortgage Loans.
Servicer
Default:
As
defined in Section 8.01.
Servicer
Prepayment Charge Payment Amount:
The
amount payable by a Servicer in respect of any waived Prepayment Charges
pursuant to Section 3.01 or pursuant to the Servicing
Agreement.
Servicer’s
Assignee:
As
defined in Section 5.01(b)(ii)
Service(s)(ing):
Means,
in accordance with Regulation AB, the act of servicing and administering the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer’ set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in 1108 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable legal fees) incurred in the performance by a Servicer
of
its servicing obligations hereunder or under the Servicing Agreement, as
applicable, including, but not limited to, the cost of (i) the preservation,
restoration, inspection, valuation and protection of a Mortgaged Property,
(ii)
any enforcement or judicial proceedings, including foreclosures, and including
any expenses incurred in relation to any such proceedings that result from
the
Mortgage Loan being registered in the MERS® System, (iii) the management and
liquidation of any REO Property (including, without limitation, realtor’s
commissions), (iv) compliance with any obligations under Section 3.07
hereof to cause insurance to be maintained and (v) payment of
taxes.
Servicing
Agreement:
The
Seller’s Purchase, Warranties and Servicing Agreement, dated as of May 1, 2006,
between the Sponsor and Xxxxx Fargo (as modified pursuant to the Assignment
Agreement).
Servicing
Criteria:
Means
the criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may be amended from time to time.
Servicing
Fee:
As to
each Mortgage Loan and any Distribution Date, an amount equal to 1/12th of
the
Servicing Fee Rate multiplied by the Stated Principal Balance of such Mortgage
Loan as of the last day of the related Due Period or, in the event of any
payment of interest that accompanies a Principal Prepayment in full during
the
related Due Period made by the Mortgagor immediately prior to such prepayment,
interest at the Servicing Fee Rate on the same Stated Principal Balance of
such
Mortgage Loan used to calculate the payment of interest on such Mortgage
Loan.
Servicing
Fee Rate:
With
respect to the Mortgage Loans serviced by GMACM, a weighted average rate of
0.2502% per annum per Mortgage Loan. With respect to the Mortgage Loans serviced
by Xxxxx Fargo, as set forth in the Servicing Agreement.
Servicing
Function Participant:
Means
any Subservicer or Subcontractor of each Servicer, the Master Servicer and
the
Securities Administrator, the Custodian, respectively. For purposes of
Section 5.18(d), such term also shall include each Servicer, the Master
Servicer, the Securities Administrator and the Custodian, without regard to
any
threshold reference therein.
Servicing
Officer:
Any
officer of a Servicer involved in, or responsible for, the administration and
the servicing of the related Mortgage Loans, whose name and specimen signature
appear on a list of Servicing Officers furnished to the Master Servicer, the
Securities Administrator the Trustee and the Depositor on the Closing Date,
as
such list may from time to time be amended.
Six-Month
LIBOR:
The per
annum rate equal to the average of interbank offered rates for Six-Month U.S.
dollar-denominated deposits in the London market based on quotations of major
banks as published in The Wall Street Journal and most recently available as
of
the time specified in the related Mortgage Note.
Sponsor:
Nomura
Credit & Capital, Inc., a Delaware corporation, and its successors and
assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
Startup
Day:
The
Startup Day for each REMIC formed hereunder shall be the Closing
Date.
Stated
Principal Balance:
With
respect to any Mortgage Loan or related REO Property and any Distribution Date,
the Cut-off Date Principal Balance thereof minus the sum of (i) the principal
portion of the Scheduled Payments due with respect to such Mortgage Loan during
each Due Period ending prior to such Distribution Date (and irrespective of
any
delinquency in their payment), (ii) all Principal Prepayments with respect
to
such Mortgage Loan received prior to or during the related Prepayment Period,
and all Liquidation Proceeds to the extent applied by the related Servicer
as
recoveries of principal in accordance with Section 3.09 of this Agreement
or pursuant to the Servicing Agreement with respect to such Mortgage Loan,
that
were received by the Servicer as of the close of business on the last day of
the
Prepayment Period related to such Distribution Date and (iii) any Realized
Losses on such Mortgage Loan incurred during the related Prepayment Period.
The
Stated Principal Balance of a Liquidated Loan equals zero.
Subcontractor:
Shall
mean any vendor, subcontractor or other Person who is not responsible for the
overall servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of a Servicer (or a Subservicer of a Servicer),
the
Master Servicer, the Trustee, the Custodian or the Securities Administrator
and
each subcontractor is determined by the Person engaging the subcontractor to
be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB.
Subservicer:
Shall
mean any Person who is identified in Item 1122(d) of Regulation AB that services
the related Mortgage Loans on behalf of a Servicer or is engaged by the Master
Servicer, the Securities Administrator or the Custodian and is responsible
for
the performance (whether directly or through subservicers or Subcontractors)
of
a substantial portion of the material servicing functions required to be
performed by such Person under this Agreement, the Servicing Agreement or any
subservicing agreement.
Subservicing
Agreement:
Any
agreement entered into between a Servicer and a Subservicer with respect to
the
subservicing of any Mortgage Loan subject to Section 3.03 of this Agreement
or the Servicing Agreement by such Subservicer.
Substitution
Adjustment Amount:
The
meaning ascribed to such term pursuant to Section 2.03(d).
Successor
Servicer:
Any
successor to a Servicer appointed pursuant to Section 8.02 of this
Agreement or pursuant to the Servicing Agreement after the occurrence of a
Servicer Default or upon the resignation of the Servicer pursuant to this
Agreement or pursuant to the Servicing Agreement.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 5.14 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Class I-IO Interest, the Class II-IO Interest and the right
to
receive payments in respect of the Class I-IO Distribution Amount and Class
II-IO Distribution Amount. For the avoidance of doubt, the Supplemental Interest
Trust does not constitute a part of the Trust Fund.
Supplemental
Interest Trust Trustee:
HSBC
Bank USA, National Association, or any successor thereto.
Swap
Agreement:
Either
the Group I Swap Agreement or the Group II Swap Agreement.
Swap
LIBOR:
LIBOR
as determined pursuant to the Swap Agreement.
Swap
Provider:
Either
the Group I Swap Provider or the Group II Swap Provider, as
applicable.
Swap
Provider Trigger Event:
A Swap
Provider Trigger Event shall have occurred if any of an Event of Default (under
the related Swap Agreement) with respect to which the Swap Provider is a
Defaulting Party, a Termination Event (under the related Swap Agreement) with
respect to which the Swap Provider is the sole Affected Party or an Additional
Termination Event (under the Swap Agreement) with respect to which the related
Swap Provider is the sole Affected Party has occurred.
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the related Swap
Agreement, the payment to be made by the Supplemental Interest Trust to the
Swap
Provider, or by the related Swap Provider to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the related Swap Agreement.
Targeted
Overcollateralization Amount:
with
respect to any Distribution Date and the Group II Certificates prior to the
Group II Stepdown Date, approximately 0.75% of the Aggregate Loan Balance of
the
Group II Mortgage Loans as of the Cut-off Date; with respect to any Distribution
Date on or after the Group II Stepdown Date and with respect to which a Group
II
Trigger Event is not in effect, the greater of (a) approximately 1.50% of the
Aggregate Loan Balance of the Group II Mortgage Loans for such Distribution
Date
(after giving effect to scheduled payments of principal due during the related
Due Period to the extent received or advanced, unscheduled collections of
principal received during the related Prepayment Period and after reduction
for
Realized Losses on the Group II Mortgage Loans incurred during the related
Due
Period), or (b) 0.35% of the Aggregate Loan Balance of the Group II Mortgage
Loans as of the Cut-off Date; with respect to any Distribution Date on or after
the Group II Stepdown Date with respect to which a Group II Trigger Event is
in
effect, the Targeted Overcollateralization Amount for such Distribution Date
will be equal to the Targeted Overcollateralization Amount for the Distribution
Date immediately preceding such Distribution Date. Notwithstanding the
foregoing, on and after any Distribution Date following the reduction of the
aggregate Certificate Principal Balance of the Group II Senior Certificates
and
Group II Mezzanine Certificates to zero, the Targeted Overcollateralization
Amount shall be zero.
Tax
Matters Person:
The
person designated as “tax matters person” in the manner provided under Treasury
regulation § 1.860F-4(d) and temporary Treasury regulation
§ 301.6231(a)(7)-1T. The Holder of the greatest Percentage Interest in a
Class of Residual Certificates shall be the Tax Matters Person for the related
REMIC. The Securities Administrator, or any successor thereto or assignee
thereof shall serve as tax administrator hereunder and as agent for the related
Tax Matters Person.
Termination
Price:
The
price, calculated as set forth in Section 10.01, to be paid in connection
with the purchase of the Group I Mortgage Loans or Group II Mortgage Loans
pursuant to Section 10.01.
Transaction
Party:
Shall
mean the Depositor, the Sponsor, the Trustee, the Servicers, the Master
Servicer, the Securities Administrator, the Custodian, the Cap Provider and
the
Swap Provider.
Transfer
Affidavit:
As
defined in Section 6.02(c).
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a
Certificate.
Trust
Fund:
Collectively, the assets of REMIC IA, REMIC IB, REMIC IC, REMIC ID,
REMIC IE, REMIC IF, REMIC IIA, REMIC IIB, REMIC IIC, REMIC IID, REMIC IIE and
REMIC IIF, the Net WAC Reserve Fund, the Basis Risk Shortfall Reserve Fund
and
the Cap Contracts. For the avoidance of doubt, the Trust Fund does not include
the Supplemental Interest Trust.
Trustee:
HSBC
Bank USA, National Association, a national banking association, not in its
individual capacity, but solely in its capacity as trustee for the benefit
of
the Certificateholders under this Agreement, and any successor thereto, and
any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
Uncertificated
Accrued Interest:
With
respect to each Uncertificated REMIC Regular Interest on each Distribution
Date,
an amount equal to one month’s interest at the related Uncertificated
Pass-Through Rate on the Uncertificated Principal Balance of such REMIC Regular
Interest. In each case, Uncertificated Accrued Interest will be reduced by
any
Prepayment Interest Shortfalls and shortfalls resulting from application of
the
Relief Act (allocated to such REMIC Regular Interests as set forth in Sections
1.02, 5.07, 5.08 and 5.09).
Uncertificated
Notional Amount:
With
respect to the Class I-X Interest and any Distribution Date, an amount equal
to
the aggregate Uncertificated Principal Balance of the REMIC IB Regular
Interests (other than REMIC IB Regular Interest LTI-P and REMIC IB
Regular Interest LTI-I-IO) for such Distribution Date. With respect to the
Class
II-X Interest and any Distribution Date, an amount equal to the aggregate
Uncertificated Principal Balance of the REMIC IIB Regular Interests (other
than
REMIC IIB Regular Interest LTII-P and REMIC IIB Regular Interest LTII-II-IO)
for
such Distribution Date.
With
respect to REMIC IB Regular Interest LTI-I-IO and each Distribution Date
listed below, the aggregate Uncertificated Principal Balance of the
REMIC IA Regular Interests ending with the designation “A” listed below:
|
Distribution
Date
|
REMIC
1 Regular Interests
|
|
0
-
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through X-00-X
|
|
00
|
X-0-X
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
- 00
|
X-0-X
through I-27-A
|
|
43
|
I-10-A
through I-27-A
|
|
44
|
I-11-A
through I-27-A
|
|
45
|
I-12-A
through I-27-A
|
|
46
|
I-13-A
through I-27-A
|
|
47
|
I-14-A
through I-27-A
|
|
48
|
I-15-A
through I-27-A
|
|
49
|
I-16-A
through I-27-A
|
|
50
|
I-17-A
through I-27-A
|
|
51
|
I-18-A
through I-27-A
|
|
52
|
I-19-A
through I-27-A
|
|
53
|
I-20-A
through I-27-A
|
|
27
|
I-21-A
through I-27-A
|
|
55
|
I-22-A
through I-27-A
|
|
56
|
I-23-A
through I-27-A
|
|
57
|
I-24-A
through I-27-A
|
|
58
|
I-25-A
through I-27-A
|
|
59
|
I-26-A
and I-27-A
|
|
60
|
I-27-A
|
|
thereafter
|
$0.00
|
With
respect to REMIC IIB Regular Interest LTII-II-IO and each Distribution Date
listed below, the aggregate Uncertificated Principal Balance of the REMIC IIA
Regular Interests ending with the designation “A” listed below:
|
Distribution
Date
|
REMIC
IIA Regular Interests
|
|
1
|
I-1-A
through I-60-A and II-1-A through II-60-A
|
|
2
|
I-2-A
through I-60-A and II-2-A through II-60-A
|
|
3
|
I-3-A
through I-60-A and II-3-A through II-60-A
|
|
4
|
I-4-A
through I-60-A and II-4-A through II-60-A
|
|
5
|
I-5-A
through I-60-A and II-5-A through II-60-A
|
|
6
|
I-6-A
through I-60-A and II-6-A through II-60-A
|
|
7
|
I-7-A
through I-60-A and II-7-A through II-60-A
|
|
8
|
I-8-A
through I-60-A and II-8-A through II-60-A
|
|
9
|
I-9-A
through I-60-A and II-9-A through II-60-A
|
|
10
|
I-10-A
through I-60-A and II-10-A through II-60-A
|
|
11
|
I-11-A
through I-60-A and II-11-A through II-60-A
|
|
12
|
I-12-A
through I-60-A and II-12-A through II-60-A
|
|
13
|
I-13-A
through I-60-A and II-13-A through II-60-A
|
|
14
|
I-14-A
through I-60-A and II-14-A through II-60-A
|
|
15
|
I-15-A
through I-60-A and II-15-A through II-60-A
|
|
16
|
I-16-A
through I-60-A and II-16-A through II-60-A
|
|
17
|
I-17-A
through I-60-A and II-17-A through II-60-A
|
|
18
|
I-18-A
through I-60-A and II-18-A through II-60-A
|
|
19
|
I-19-A
through I-60-A and II-19-A through II-60-A
|
|
20
|
I-20-A
through I-60-A and II-20-A through II-60-A
|
|
21
|
I-21-A
through I-60-A and II-21-A through II-60-A
|
|
22
|
I-22-A
through I-60-A and II-22-A through II-60-A
|
|
23
|
I-23-A
through I-60-A and II-23-A through II-60-A
|
|
24
|
I-24-A
through I-60-A and II-24-A through II-60-A
|
|
25
|
I-25-A
through I-60-A and II-25-A through II-60-A
|
|
26
|
I-26-A
through I-60-A and II-26-A through II-60-A
|
|
27
|
I-27-A
through I-60-A and II-27-A through II-60-A
|
|
28
|
I-28-A
through I-60-A and II-28-A through II-60-A
|
|
29
|
I-29-A
through I-60-A and II-29-A through II-60-A
|
|
30
|
I-30-A
through I-60-A and II-30-A through II-60-A
|
|
31
|
I-31-A
through I-60-A and II-31-A through II-60-A
|
|
32
|
I-32-A
through I-60-A and II-32-A through II-60-A
|
|
33
|
I-33-A
through I-60-A and II-33-A through II-60-A
|
|
34
|
I-34-A
through I-60-A and II-34-A through II-60-A
|
|
35
|
I-35-A
through I-60-A and II-35-A through II-60-A
|
|
36
|
I-36-A
through I-60-A and II-36-A through II-48-A
|
|
37
|
I-37-A
through I-60-A and II-37-A through II-48-A
|
|
38
|
I-38-A
through I-60-A and II-38-A through II-48-A
|
|
39
|
I-39-A
through I-60-A and II-39-A through II-48-A
|
|
40
|
I-40-A
through I-60-A and II-40-A through II-48-A
|
|
41
|
I-41-A
through I-60-A and II-41-A through II-48-A
|
|
42
|
I-42-A
through I-60-A and II-42-A through II-48-A
|
|
43
|
I-43-A
through I-60-A and II-43-A through II-48-A
|
|
44
|
I-44-A
through I-60-A and II-44-A through II-48-A
|
|
45
|
I-45-A
through I-60-A and II-45-A through II-48-A
|
|
46
|
I-46-A
through I-60-A and II-46-A through II-48-A
|
|
47
|
I-47-A
through I-60-A and II-47-A through II-60-A
|
|
48
|
I-48-A
through I-60-A and II-48-A through II-60-A
|
|
49
|
I-49-A
through I-60-A and II-49-A through II-60-A
|
|
50
|
I-50-A
through I-60-A and II-50-A through II-60-A
|
|
51
|
I-51-A
through I-60-A and II-51-A through II-60-A
|
|
52
|
I-52-A
through I-60-A and II-52-A through II-60-A
|
|
53
|
I-53-A
through I-60-A and II-53-A through II-60-A
|
|
54
|
I-54-A
through I-60-A and II-54-A through II-60-A
|
|
55
|
I-55-A
through I-60-A and II-55-A through II-60-A
|
|
56
|
I-56-A
through I-60-A and II-56-A through II-60-A
|
|
57
|
I-57-A
through I-60-A and II-57-A through II-60-A
|
|
58
|
I-58-A
through I-60-A and II-58-A through II-60-A
|
|
59
|
I-59-A
and I-60-A and II-59-A and II-60-A
|
|
60
|
I-60-A
and II-60-A
|
|
thereafter
|
$0.00
|
With
respect to the Class I-IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC IB Regular Interest
LTI-I-IO. With respect to the Class II-IO Interest and any Distribution Date,
an
amount equal to the Uncertificated Notional Amount of the REMIC IIB Regular
Interest LTII-II-IO.
Uncertificated
Principal Balance:
With
respect to each REMIC Regular Interest, the principal amount of such REMIC
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Principal Balance of each REMIC Regular Interest shall
equal the amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC Regular Interest shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 5.07 and, if and to the extent
necessary and appropriate, shall be further reduced on such Distribution Date
by
Realized Losses as provided in Section 5.07. The Uncertificated Principal
Balance of each REMIC Regular Interest shall never be less than
zero.
Uncertificated
REMIC IA Pass-Through Rate:
With
respect to REMIC IA Regular Interest I, a per annum rate equal to the
weighted average Net Mortgage Rate of the Group I Mortgage Loans. With respect
to each REMIC IA Regular
Interest ending with the designation “A”, a per annum rate equal to the weighted
average Net Mortgage Rate of the Group I Mortgage Loans multiplied by 2, subject
to a maximum rate of 10.40%. With respect to each REMIC IA Regular Interest
ending with the designation “B”, the greater of (x) a per annum rate equal to
the excess, if any, of (i) 2 multiplied by the weighted average Net Mortgage
Rate of the Group I Mortgage Loans over
(ii)
10.40% and (y) 0.00%.
Uncertificated
REMIC IB Pass-Through Rate:
With
respect to REMIC IB Regular Interest LTI-AA, REMIC IB
Regular Interest LTI-IA1,
REMIC IB Regular Interest LTI-IA2,
REMIC IB Regular Interest LTI-IA3,
REMIC IB Regular Interest LTI-IA4,
REMIC IB Regular Interest LTI-IM1, REMIC IB Regular Interest LTI-IM2,
REMIC IB Regular Interest LTI-IM3, REMIC IB Regular Interest
LTI-IZZ
and
REMIC IB Regular Interest LTI-IXX,
a
per
annum rate (but not less than zero) equal to the weighted average of (w) with
respect to REMIC IA Regular Interest I, the
Uncertificated REMIC IA Pass-Through Rate for such REMIC IA Regular
Interest for each such Distribution Date, (x) with respect to REMIC IA
Regular Interests ending with the designation “B”, the weighted average of the
Uncertificated REMIC IA Pass-Through Rates for such REMIC IA Regular
Interests, weighted on the basis of the Uncertificated Principal Balance of
such
REMIC IA Regular Interests for each such Distribution Date and (y) with
respect to REMIC IA Regular Interests ending with the designation “A”, for
each Distribution Date listed below, the weighted average of the rates listed
below for each such REMIC IA Regular Interest listed below, weighted on the
basis of the Uncertificated Principal Balance of each such REMIC IA Regular
Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC IA
Regular Interest
|
Rate
|
|
1
-
28
|
I-1-A
through I-27-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
29
|
I-2-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
30
|
I-3-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
31
|
I-4-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
32
|
I-5-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
33
|
I-6-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
34
|
I-7-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
35
|
I-8-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
36
|
I-9-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
37
- 42
|
I-10-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
43
|
I-11-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
44
|
I-12-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
45
|
I-13-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
46
|
I-14-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
47
|
I-15-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
48
|
I-16-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
49
|
I-17-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
50
|
I-18-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
51
|
I-19-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
52
|
I-20-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
53
|
I-21-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
27
|
I-22-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
55
|
I-23-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
56
|
I-24-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
57
|
I-25-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
58
|
I-26-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
59
|
I-26-A
and I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
60
|
I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-27-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
With
respect to REMIC IB Regular Interest LTI-SC, a per annum rate (but not less
than zero) equal to the weighted average of (x) with respect to the
REMIC IA Regular Interests ending with the designation “B”, the weighted
average of the Uncertificated REMIC IA Pass-Through Rates for such
REMIC IA Regular Interests, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC IA Regular Interest for each such
Distribution Date and (y) with respect to the REMIC IA Regular Interests
ending with the designation “A”, for each Distribution Date listed below, the
weighted average of the rates listed below for such REMIC IA Regular
Interests
listed
below, weighted on the basis of the Uncertificated Principal Balance of each
such REMIC IA
Regular
Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC IA
Regular Interest
|
Rate
|
|
1-28
|
I-1-A
through I-27-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
29
|
I-1-A
through I-27-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
30
|
I-2-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
31
|
I-3-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
32
|
I-4-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
33
|
I-5-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
34
|
I-6-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
35
|
I-7-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
36
|
I-8-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
37
- 42
|
I-9-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
43
|
I-10-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
44
|
I-11-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
45
|
I-12-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
46
|
I-13-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
47
|
I-14-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
48
|
I-15-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
49
|
I-16-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
50
|
I-17-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
51
|
I-18-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
52
|
I-19-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
53
|
I-20-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
54
|
I-21-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
55
|
I-22-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
56
|
I-23-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
57
|
I-24-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
58
|
I-25-A
through I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
59
|
I-26-A
and I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
60
|
I-27-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IA Pass-Through Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-27-A
|
Uncertificated
REMIC IA Pass-Through Rate
|
Uncertificated
REMIC IIA Pass-Through Rate:
With
respect to REMIC IIA Regular Interest I, a per annum rate equal to the weighted
average Net Mortgage Rate of Loan
Group II-1.
With
respect to each REMIC IIA Group
II-1
Regular Interest ending with the designation “A”, a per annum rate equal to the
weighted average Net Mortgage Rate of Loan
Group II-1
multiplied by 2, subject to a maximum rate of 10.75%. With respect to each
REMIC
IIA Regular Interest ending with the designation “B”, the greater of (x) a per
annum rate equal to the excess, if any, of (i) 2 multiplied by the weighted
average Net Mortgage Rate of Loan Group II-1 over (ii) 10.75% and (y) 0.00%.
With respect to REMIC IIA Regular Interest II, a per annum rate equal to the
weighted average Net Mortgage Rate of Loan Group II-2. With respect to each
REMIC IIA Group II-2 Regular Interest ending with the designation “A”, a per
annum rate equal to the weighted average Net Mortgage Rate of Loan Group II-2
multiplied by 2, subject to a maximum rate of 10.75%. With respect to each
REMIC
I Group II-2 Regular Interest ending with the designation “B”, the greater of
(x) a per annum rate equal to the excess, if any, of (i) 2 multiplied by the
weighted average Net Mortgage Rate of Loan Group II-2 over (ii) 10.75%
and (y) 0.00%.
Uncertificated
REMIC IIB Pass-Through Rate:
With
respect to REMIC IIB Regular Interest LTII-IIAA, REMIC
IIB
Regular Interest LTII-IA1, REMIC IIB Regular Interest LTII-IIA1A, REMIC IIB
Regular Interest LTII-IIA1B, REMIC IIB Regular Interest LTII-IIA2, REMIC IIB
Regular Interest LTII-IIA3, REMIC IIB Regular Interest LTII-IIA4A, REMIC IIB
Regular Interest LTII-IIA4B, REMIC IIB Regular Interest LTII-IIM1, REMIC IIB
Regular Interest LTII-IIM2, REMIC IIB Regular Interest LTII-IIM3, REMIC IIB
Regular Interest LTII-IIM4, REMIC IIB Regular Interest LTII-IIM5, REMIC IIB
Regular Interest LTII-IIM6, REMIC IIB Regular Interest LTII-IIM7, REMIC IIB
Regular Interest LTII-IIM8,
REMIC
IIB Regular Interest LTII-IIZZ, REMIC IIB Regular Interest LTII-1SUB, REMIC
IIB
Regular Interest LTII-2SUB, and REMIC IIB Regular Interest LTII-XX, a
per
annum rate (but not less than zero) equal to the weighted average of (w) with
respect to REMIC IIA Regular Interest I, REMIC
IIA
Regular Interest II, the
Uncertificated REMIC IIA Pass-Through Rate for such REMIC IIA Regular Interest
for each such Distribution Date, (x) with respect to REMIC IIA Regular Interests
ending with the designation “B”, the weighted average of the Uncertificated
REMIC IIA Pass-Through Rates for such REMIC IIA Regular Interests, weighted
on
the basis of the Uncertificated Principal Balance of such REMIC IIA Regular
Interests for each such Distribution Date and (y) with respect to REMIC IIA
Regular Interests ending with the designation “A”, for each Distribution Date
listed below, the weighted average of the rates listed below for each such
REMIC
IIA Regular Interest listed below, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC IIA Regular Interest for each such
Distribution Date:
|
Distribution
Date
|
REMIC
IIA Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-60-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-60-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
2
|
I-2-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-2-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate Uncertificated
REMIC
IIA Pass-Through Rate
|
|
|
I-1-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
3
|
I-3-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-3-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
and II-2-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
4
|
I-4-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-4-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-3-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
5
|
I-5-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-5-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-4-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
6
|
I-6-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-6-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-5-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
7
|
I-7-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-7-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-6-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
8
|
I-8-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-8-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-7-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
9
|
I-9-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-9-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-8-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
10
|
I-10-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-10-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-9-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
11
|
I-11-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-11-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-10-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
12
|
I-12-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-12-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-11-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
13
|
I-13-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-13-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-12-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
14
|
I-14-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-14-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-13-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
15
|
I-15-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-15-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-14-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
16
|
I-16-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-16-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-15-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
17
|
I-17-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-17-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-16-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
18
|
I-18-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-18-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-17-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
19
|
I-19-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-19-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-18-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
20
|
I-20-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-20-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-19-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
21
|
I-21-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-21-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-20-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
22
|
I-22-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-22-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-21-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
23
|
I-23-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-23-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-22-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
24
|
I-24-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-24-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-23-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
25
|
I-25-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-25-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-24-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
26
|
I-26-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-26-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-25-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
27
|
I-27-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-27-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-26-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
28
|
I-28-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-28-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-27-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
29
|
I-29-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-29-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-28-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
30
|
I-30-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-30-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-29-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
31
|
I-31-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-31-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-30-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
32
|
I-32-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-32-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-31-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
33
|
I-33-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-33-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-32-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
34
|
I-34-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-34-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-33-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
35
|
I-35-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-35-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-34-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
36
|
I-36-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-36-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-35-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
37
|
I-37-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-37-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-36-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
38
|
I-38-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-38-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-37-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
39
|
I-39-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-39-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-38-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
40
|
I-40-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-40-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-39-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
41
|
I-41-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-41-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-40-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
42
|
I-42-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-42-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-41-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
43
|
I-43-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-43-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-42-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
44
|
I-44-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-44-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-43-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
45
|
I-45-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-45-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-44-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
46
|
I-46-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-46-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-45-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
47
|
I-47-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-47-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-46-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
48
|
I-48-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-48-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-47-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
49
|
I-49-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-49-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-48-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-48-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
50
|
I-50-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-50-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-49-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-49-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
51
|
I-51-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-15-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-50-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-50-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
52
|
I-52-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-52-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-51-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-51-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
53
|
I-53-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-53-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-52-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-52-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
54
|
I-54-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-54-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-53-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-53-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
55
|
I-55-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-55-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-54-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-54-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
56
|
I-56-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-56-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-55-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-55-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
57
|
I-57-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-57-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-56-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-56-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
58
|
I-58-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-58-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-57-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-57-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
59
|
I-59-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-59-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-58-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-58-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
60
|
I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
I-1-A
through I-59-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
II-1-A
through II-59-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-60-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-60-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
With
respect to REMIC IIB Regular Interest LTII-1GRP, a per annum rate (but not
less
than zero) equal to the weighted average of (w) with respect to REMIC IIA
Regular Interest I, the Uncertificated REMIC IIA Pass-Through Rate for such
REMIC IIA Regular Interest for each such Distribution Date, (x) with respect
to
REMIC IIA Group II-1 Regular Interests ending with the designation “B”, the
weighted average of the Uncertificated REMIC IIA Pass-Through Rates for such
REMIC IIA Regular Interests, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC IIA Regular Interest for each such
Distribution Date and (y) with respect to REMIC IIA Group II-1 Regular Interests
ending with the designation “A”, for each Distribution Date listed below, the
weighted average of the rates listed below for such REMIC IIA Regular Interests
listed below, weighted on the basis of the Uncertificated Principal Balance
of
each such REMIC IIA Regular Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC
IIA Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-60-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
2
|
I-2-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
3
|
I-3-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
4
|
I-4-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
5
|
I-5-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
6
|
I-6-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
7
|
I-7-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
8
|
I-8-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
9
|
I-9-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
10
|
I-10-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
11
|
I-11-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
12
|
I-12-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
13
|
I-13-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
14
|
I-14-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
15
|
I-15-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
16
|
I-16-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
17
|
I-17-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
18
|
I-18-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
19
|
I-19-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
20
|
I-20-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
21
|
I-21-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
22
|
I-22-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
23
|
I-23-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
24
|
I-24-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
25
|
I-25-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
26
|
I-26-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
27
|
I-27-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
28
|
I-28-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
29
|
I-29-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
30
|
I-30-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
31
|
I-31-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
32
|
I-32-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
33
|
I-33-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
34
|
I-34-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
35
|
I-35-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
36
|
I-36-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
37
|
I-37-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
38
|
I-38-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
39
|
I-39-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
40
|
I-40-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
41
|
I-41-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
42
|
I-42-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
43
|
I-43-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
44
|
I-44-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
45
|
I-45-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
46
|
I-46-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
47
|
I-47-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
48
|
I-48-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
49
|
I-49-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-48-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
50
|
I-50-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-49-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
51
|
I-51-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-50-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
52
|
I-52-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-51-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
53
|
I-53-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-52-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
54
|
I-54-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-53-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
55
|
I-55-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-54-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
56
|
I-56-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-55-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
57
|
I-57-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-56-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
58
|
I-58-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-57-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
59
|
I-59-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-58-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
60
|
I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
I-1-A
through I-53-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-60-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
With
respect to REMIC IIB Regular Interest LTIII-2GRP, a per annum rate (but not
less
than zero) equal to the weighted average of (w) with respect to REMIC IIA
Regular Interest II, the Uncertificated REMIC IIA Pass-Through Rate for such
REMIC IIA Regular Interest for each such Distribution Date, (x) with respect
to
REMIC IIA Group III-2 Regular Interests ending with the designation “B”, the
weighted average of the Uncertificated REMIC IIA Pass-Through Rates for such
REMIC IIA Regular Interests, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC IIA Regular Interest for each such
Distribution Date and (y) with respect to REMIC IIA Group III-2 Regular
Interests ending with the designation “A”, for each Distribution Date listed
below, the weighted average of the rates listed below for such REMIC IIA Regular
Interests listed below, weighted on the basis of the Uncertificated Principal
Balance of each such REMIC IIA Regular Interest for each such Distribution
Date:
|
Distribution
Date
|
REMIC
IIA Regular Interest
|
Rate
|
|
1
|
II-1-A
through II-60-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
2
|
II-2-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
3
|
II-3-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
and II-2-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
4
|
II-4-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-3-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
5
|
II-5-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-4-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
6
|
II-6-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-5-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
7
|
II-7-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-6-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
8
|
II-8-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-7-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
9
|
II-9-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-8-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
10
|
II-10-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-9-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
11
|
II-11-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-10-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
12
|
II-12-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-11-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
13
|
II-13-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-12-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
14
|
II-14-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-13-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
15
|
II-15-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-14-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
16
|
II-16-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-15-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
17
|
II-17-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-16-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
18
|
II-18-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-17-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
19
|
II-19-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-18-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
20
|
II-20-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-19-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
21
|
II-21-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-20-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
22
|
II-22-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-21-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
23
|
II-23-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-22-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
24
|
II-24-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-23-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
25
|
II-25-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-24-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
26
|
II-26-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-25-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
27
|
II-27-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-26-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
28
|
II-28-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-27-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
29
|
II-29-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-28-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
30
|
II-30-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-29-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
31
|
II-31-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-30-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
32
|
II-32-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-31-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
33
|
II-33-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-32-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
34
|
II-34-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-33-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
35
|
II-35-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-34-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
36
|
II-36-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-35-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
37
|
II-37-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-36-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
38
|
II-38-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-37-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
39
|
II-39-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-38-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
40
|
II-40-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-39-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
41
|
II-41-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-40-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
42
|
II-42-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-41-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
43
|
II-43-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-42-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
44
|
II-44-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-43-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
45
|
II-45-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-44-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
46
|
II-46-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-45-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
47
|
II-47-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-46-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
48
|
II-48-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-47-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
49
|
II-49-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-48-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
50
|
II-50-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-49-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
51
|
II-51-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-50-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
52
|
II-52-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-51-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
53
|
II-53-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-52-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
54
|
II-54-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-53-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
55
|
II-55-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-54-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
56
|
II-56-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-55-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
57
|
II-57-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-56-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
58
|
II-58-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-57-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
59
|
II-59-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-58-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
60
|
II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC IIA Pass-Through Rate
|
|
II-1-A
through II-53-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
|
|
thereafter
|
II-1-A
through II-60-A
|
Uncertificated
REMIC IIA Pass-Through Rate
|
With
respect to REMIC IIB Regular Interest LTII-II-IO, the excess of (i) the
Uncertificated REMIC IIA Pass-Through Rates for REMIC IIA Regular Interests
ending with the designation “A”, over (ii) 2 multiplied by Swap
LIBOR.
Uncertificated
REMIC Regular Interest:
The
REMIC IA Regular Interests, REMIC IB Regular Interests, REMIC IIA
Regular Interests, REMIC IIB Regular Interests, the Class I-X Interest, Class
I-P Interest, Class I-IO Interest, Class II-X Interest, Class II-P Interest
and
Class II-IO Interest.
Voting
Rights:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions hereunder. Voting Rights
shall
be allocated (i) 98% to the Certificates (other than the Class I-X, Class I-P,
Class II-X, Class II-P and the Residual Certificates) and (ii) 0.5% to each
of
the Class I-X, Class I-P, Class II-X and Class II-P Certificates. Voting rights
will be allocated among the Certificates of each such Class in accordance with
their respective Percentage Interests. The Residual Certificates will not be
allocated any voting rights.
Xxxxx
Fargo:
Xxxxx
Fargo Bank, National Association, and any successor thereto appointed under
this
Agreement in connection with the servicing and administration of the Xxxxx
Fargo
Mortgage Loans.
Xxxxx
Fargo Mortgage Loans:
Those
Mortgage Loans serviced by Xxxxx Fargo pursuant to the terms and provisions
of
the Servicing Agreement and identified as such on the Mortgage Loan
Schedule.
Section
1.02 Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of the Interest Distribution Amount for
the
Group I Senior Certificates, Group I Mezzanine Certificates and Class I-X
Certificates for any Distribution Date, (1) the aggregate amount of any Net
Interest Shortfalls in respect of the Group I Mortgage Loans for any
Distribution Date shall first reduce the Interest Distribution Amount payable
to
the Class I-M-3 Certificates, second, reduce the Interest Distribution Amount
payable to the Class I-M-2 Certificates, third, reduce the Interest Distribution
Amount payable to the Class I-M-1 Certificates, and fourth, reduce the Interest
Distribution Amount payable to the Group I Senior Certificates, on a
pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
or
Certificate Notional Balance, as applicable of each such Certificate and (2)
the
aggregate amount of any Realized Losses on the Group I Mortgage Loans allocated
to the Group I Subordinate Certificates and Net WAC Rate Carryover Amount paid
to the Group I Senior Certificates and the Group I Mezzanine Certificates
incurred for any Distribution Date shall be allocated to the Class I-X
Certificates based on, and to the extent of, one month’s interest at the then
applicable Pass-Through Rate on the Certificate Notional Balance thereof on
any
Distribution Date.
For
purposes of calculating the amount of the Interest Remittance Amount for the
Group II Mortgage Loans for any Distribution Date, (1) the aggregate amount
of
any Net Interest Shortfalls in respect of the Group II Mortgage Loans for any
Distribution Date shall reduce the Interest Remittance Amount on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each Class of Group II Senior Certificates and Group II Mezzanine Certificates
and (2) the aggregate amount of any Realized Losses allocated to the Group
II
Senior Certificates and Group II Mezzanine Certificates and Basis Risk
Shortfalls allocated to the Group II Senior Certificates and Group II Mezzanine
Certificates for any Distribution Date shall be allocated to the Class II-X
Certificates based on, and to the extent of, one month’s interest at the then
applicable respective Pass-Through Rate on the Certificate Principal Balance
thereof on any Distribution Date.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC IA Regular Interests for any Distribution Date the aggregate amount
of any Net Interest Shortfalls incurred in respect of the Group I Mortgage
Loans
for any Distribution Date shall be allocated first,
to
REMIC IA Regular Interest I and to the REMIC IA Regular Interests
ending with the designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC IA Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC IA Regular Interest, and then, to
REMIC IA Regular Interests ending with the designation “A”, pro rata based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC IA Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC IA Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC IB Regular Interests for any Distribution Date:
The
REMIC IB Marker Allocation Percentage of the aggregate amount of any Net
Interest Shortfalls incurred in respect of the Group I Mortgage Loans for any
Distribution Date shall be allocated among
REMIC IB Regular Interest LTI-AA, REMIC IB Regular Interest LIT-IA1,
REMIC IB Regular Interest LTI-IA2, REMIC IB Regular Interest LTI-IA3,
REMIC IB Regular Interest LTI-IA4, REMIC IB Regular Interest LTI-IM1,
REMIC IB Regular Interest LTI-IM2, REMIC IB Regular Interest LTI-IM3
and REMIC IB Regular Interest LTI-IZZ, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC IB Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC IB Regular Interest.
The
REMIC IB SC Allocation Percentage of the aggregate amount of any Net
Interest Shortfalls incurred in respect of the Group I Mortgage Loans for any
Distribution Date shall be allocated to the Uncertificated Accrued Interest
payable to REMIC IB Regular Interest LTI-SC, REMIC IB Regular Interest
LTI-NSC and REMIC IB Regular Interest LTI-XX, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC IB Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC IB Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC IIA Group II-1 Regular Interests for any Distribution Date the aggregate
amount of any Net Interest Shortfalls incurred in respect of the Group II-1
Mortgage Loans for any Distribution Date shall be allocated first,
to
REMIC IIA Regular Interest I and to the REMIC IIA Group II-1 Regular Interests
ending with the designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC IIA Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC IIA Regular Interest, and then, to REMIC
IIA Group II-1 Regular Interests ending with the designation “A”, pro rata based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC IIA Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC IIA Regular Interest. For purposes of
calculating the amount of Uncertificated Accrued Interest for the REMIC IIA
Group II-2 Regular Interests for any Distribution the aggregate amount of any
Net Interest Shortfalls incurred in respect of the Group II-2 Mortgage Loans
for
any Distribution Date shall be allocated first,
REMIC IIA Regular Interest II and to the REMIC IIA Group II-2 Regular Interests
ending with the designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC IIA Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC IIA Regular Interest, and then, to REMIC
IIA Group II-2 Regular Interests ending with the designation “A”, pro rata based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC IIA Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC IIA Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC IIB Regular Interests for any Distribution Date:
The
REMIC
IIB Marker Allocation Percentage of the aggregate amount of any Net Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated among
REMIC IIB Regular Interest LTII-IIAA, REMIC IIB Regular Interest LTII-IA1,
REMIC
IIB Regular Interest LTII-IIA1A, REMIC IIB Regular Interest LTII-IIA1B, REMIC
IIB Regular Interest LTII-IIA2, REMIC IIB Regular Interest LTII-IIA3,
REMIC
IIB
Regular Interest LTII-IIA4A, REMIC
IIB
Regular Interest LTII-IIA4B, REMIC IIB Regular Interest LTII-IIM1, REMIC IIB
Regular Interest LTII-IIM2, REMIC IIB Regular Interest LTII-IIM3, REMIC IIB
Regular Interest LTII-IIM4, REMIC IIB Regular Interest LTII-IIM5, REMIC IIB
Regular Interest LTII-IIM6, REMIC IIB Regular Interest LTII-IIM7, REMIC IIB
Regular Interest LTII-IIM8 and REMIC IIB Regular Interest LTII-IIZZ,
pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC IIB Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC IIB Regular Interest.
The
REMIC
IIB Sub WAC Allocation Percentage of the aggregate amount of any Net Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated to the Uncertificated Accrued Interest payable to REMIC
IIB
Regular Interest LTII-1SUB, REMIC IIB Regular Interest LTII-1GRP, REMIC IIB
Regular Interest LTII-2SUB, REMIC IIB Regular Interest LTII-2GRP and REMIC
IIB
Regular Interest LTII-XX, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC IIB Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC IIB Regular Interest.
ARTICLE
II
CONVEYANCE
OF TRUST FUND
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Conveyance
of Trust Fund.
The
Sponsor hereby sells, transfers, assigns, sets over and otherwise conveys to
the
Depositor, without recourse, all the right, title and interest of the Sponsor
in
and to the assets in the Trust Fund.
The
Sponsor has entered into this Agreement in consideration for the purchase of
the
Mortgage Loans by the Depositor and has agreed to take the actions specified
herein.
The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for the
use
and benefit of the Certificateholders, without recourse, all the right, title
and interest of the Depositor in and to the Trust Fund.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, to the extent of the Mortgage Loans sold under the Mortgage
Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall
be entitled to exercise all rights of the Depositor under the Mortgage Loan
Purchase Agreement as if, for such purpose, it were the Depositor. The foregoing
sale, transfer, assignment, set-over, deposit and conveyance does not and is
not
intended to result in creation or assumption by the Trustee of any obligation
of
the Depositor, the Sponsor or any other Person in connection with the Mortgage
Loans or any other agreement or instrument relating thereto except as
specifically set forth herein.
In
connection with such sale, the Depositor does hereby deliver to, and deposit
with the Custodian pursuant to the Custodial Agreement the documents with
respect to each Mortgage Loan as described under Section 2 of the Custodial
Agreement (the “Mortgage Loan Documents”). In connection with such delivery and
as further described in the Custodial Agreement, the Custodian will be required
to review such Mortgage Loan Documents and deliver to the Trustee, the
Depositor, the Servicers and the Sponsor certifications (in the forms attached
to the Custodial Agreement) with respect to such review with exceptions noted
thereon. In addition, under the Custodial Agreement the Depositor will be
required to cure certain defects with respect to the Mortgage Loan Documents
for
the Mortgage Loans after the delivery thereof by the Depositor to the Custodian
as more particularly set forth therein.
Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge that
the functions of the Trustee with respect to the custody, acceptance, inspection
and release of the Mortgage Files and preparation and delivery of the
certifications shall be performed by the Custodian pursuant to the terms and
conditions of the Custodial Agreement.
The
Depositor shall deliver or cause to be delivered to the related Servicer copies
of all trailing documents required to be included in the related Mortgage File
at the same time the originals or certified copies thereof are delivered to
the
Custodian, such documents including the mortgagee policy of title insurance
and
any Mortgage Loan Documents upon return from the recording office. No Servicer
shall be responsible for any custodial fees or other costs incurred in obtaining
such documents and the Depositor shall cause each Servicer to be reimbursed
for
any such costs such Servicer may incur in connection with performing its
obligations under this Agreement or the Servicing Agreement, as
applicable.
The
Mortgage Loans permitted by the terms of this Agreement to be included in the
Trust Fund are limited to (i) Mortgage Loans (which the Depositor acquired
pursuant to the Mortgage Loan Purchase Agreement, which contains, among other
representations and warranties, a representation and warranty of the Sponsor
that no Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey
Home Ownership Act effective November 27, 2003, as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004) as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C) or as defined in the Indiana Home Loan Practices
Act,
effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through 24-9-9) and
(ii) Qualified Substitute Mortgage Loans (which, by definition as set forth
herein and referred to in the Mortgage Loan Purchase Agreement, are required
to
conform to, among other representations and warranties, the representation
and
warranty of the Sponsor that no Qualified Substitute Mortgage Loan is a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003, as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, as defined in the Massachusetts Predatory Home Loan
Practices Act, effective November 7, 2004 (Mass. Xxx. Laws Ch. 183C) or as
defined in the Indiana Home Loan Practices Act, effective January 1, 2005 (Ind.
Code Xxx. Sections 24-9-1 through 24-9-9). The Depositor and the Trustee on
behalf of the Trust Fund understand and agree that it is not intended that
any
mortgage loan be included in the Trust Fund that is a “High-Cost Home Loan” as
defined in the New Jersey Home Ownership Act effective November 27, 2003, as
defined in the New Mexico Home Loan Protection Act effective January 1, 2004,
as
defined in the Massachusetts Predatory Home Loan Practices Act, effective
November 7, 2004 (Mass. Xxx. Laws Ch. 183C) or as defined in the Indiana Home
Loan Practices Act, effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1
through 24-9-9).
Section
2.02 Acceptance
of the Mortgage Loans.
(a) Based
on
the initial trust receipt received by it from the Custodian pursuant to the
Custodial Agreement, the Trustee acknowledges receipt, subject to the provisions
of Section 2.01 hereof and Section 2 of the Custodial Agreement, of
the Mortgage Loan Documents and all other assets included in the definition
of
“REMIC IA” and REMIC IIA” under clauses (i), (ii) (iii), (v) and (vi) (to
the extent of amounts deposited into the Distribution Account) and declares
that
it holds (or the Custodian on its behalf holds) and will hold such documents
and
the other documents delivered to it constituting a Mortgage Loan Document,
and
that it holds (or the Custodian on its behalf holds) or will hold all such
assets and such other assets included in the definition of “REMIC IA” and
“REMIC IIA” in trust for the exclusive use and benefit of all present and future
Certificateholders.
(b) In
conducting the review of the Mortgage Files in accordance with the Custodial
Agreement, the Custodian on the Trustee’s behalf will ascertain whether all
required documents have been executed and received and whether those documents
relate to the Mortgage Loans identified in Exhibit B to this Agreement, as
supplemented. If the Custodian finds any document constituting part of the
Mortgage File not to have been executed or received, or to be unrelated to
the
Mortgage Loans identified in Exhibit B, the Sponsor shall correct or cure any
such defect or, if prior to the end of the second anniversary of the Closing
Date, the Sponsor may substitute for the related Mortgage Loan a Replacement
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03 or shall deliver to the
Trustee an Opinion of Counsel to the effect that such defect does not materially
or adversely affect the interests of the Certificateholders in such Mortgage
Loan within sixty (60) days from the date of notice from the Custodian of the
defect and if the Sponsor fails to correct or cure the defect or deliver such
opinion within such period, the Sponsor will, subject to Section 2.03,
within ninety (90) days from the notification of the Custodian purchase such
Mortgage Loan at the Purchase Price; provided, however, that if such defect
relates solely to the inability of the Sponsor to deliver the Mortgage,
assignment thereof to the Custodian, or intervening assignments thereof with
evidence of recording thereon because such documents have been submitted for
recording and have not been returned by the applicable jurisdiction, the Sponsor
shall not be required to purchase such Mortgage Loan if the Sponsor delivers
such documents promptly upon receipt, but in no event later than 360 days after
the Closing Date.
(c) No
later
than 180 days after the Closing Date, the Custodian on the Trustee’s behalf will
review, for the benefit of the Certificateholders, the Mortgage Files and will
execute and deliver or cause to be executed and delivered to the Sponsor and
the
Trustee, a final trust receipt substantially in the form annexed to the
Custodial Agreement. In conducting such review, the Custodian on the Trustee’s
behalf and in accordance with the terms of the Custodial Agreement will
ascertain whether each document required to be recorded has been returned from
the recording office with evidence of recording thereon and the Custodian on
the
Trustee’s behalf has received either an original or a copy thereof, as required
in the Custodial Agreement. If the Custodian finds that any document with
respect to a Mortgage Loan has not been received, or is unrelated to the
Mortgage Loans identified in Exhibit B or appears to be defective on its face,
the Custodian shall note such defect in the exception report attached the final
trust receipt issued pursuant to the Custodial Agreement and the Sponsor shall
correct or cure any such defect or, if prior to the end of the second
anniversary of the Closing Date, the Sponsor may substitute for the related
Mortgage Loan a Replacement Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in
Section 2.03 or shall deliver to the Trustee an Opinion of Counsel to the
effect that such defect does not materially or adversely affect the interests
of
Certificateholders in such Mortgage Loan within sixty (60) days from the date
of
notice from the Trustee of the defect and if the Sponsor is unable within such
period to correct or cure such defect, or to substitute the related Mortgage
Loan with a Replacement Mortgage Loan or to deliver such opinion, the Sponsor
shall, subject to Section 2.03, within ninety (90) days from the
notification of the Trustee, purchase such Mortgage Loan at the Purchase Price;
provided, however, that if such defect relates solely to the inability of the
Sponsor to deliver the Mortgage, assignment thereof to the Trustee or
intervening assignments thereof with evidence of recording thereon, because
such
documents have not been returned by the applicable jurisdiction, the Sponsor
shall not be required to purchase such Mortgage Loan, if the Sponsor delivers
such documents promptly upon receipt, but in no event later than 360 days after
the Closing Date.
(d) In
the
event that a Mortgage Loan is purchased by the Sponsor in accordance with
subsections 2.02(a) or (b) above or Section 2.03, the Sponsor shall remit
the applicable Purchase Price to the Servicer for deposit in the Custodial
Account and shall provide written notice to the Securities Administrator
detailing the components of the Purchase Price, signed by an authorized officer.
Upon deposit of the Purchase Price in the Custodial Account and upon receipt
of
a request for release (in the form attached to the Custodial Agreement) with
respect to such Mortgage Loan, the Custodian, on behalf of the Trustee, will
release to the Sponsor the related Mortgage File and the Trustee shall execute
and deliver all instruments of transfer or assignment, without recourse,
furnished to it by the Sponsor, as are necessary to vest in the Sponsor title
to
and rights under the Mortgage Loan. Such purchase shall be deemed to have
occurred on the date on which the deposit into the Custodial Account was made.
The Trustee shall promptly notify the Rating Agencies of such repurchase. The
obligation of the Sponsor to cure, repurchase or substitute for any Mortgage
Loan as to which a defect in a constituent document exists shall be the sole
remedies respecting such defect available to the Certificateholders or to the
Trustee on their behalf. The Sponsor shall promptly reimburse the Trustee for
any expenses incurred by the Trustee in respect of enforcing the remedies for
such breach.
(e) The
Sponsor shall deliver to the Custodian the Mortgage Note and other documents
constituting the Mortgage File with respect to any Replacement Mortgage Loan,
which the Custodian will review as provided in the Custodial Agreement,
provided, that the Closing Date referred to therein shall instead be the date
of
delivery of the Mortgage File with respect to each Replacement Mortgage
Loan.
Section
2.03 Representations,
Warranties and Covenants of GMACM and the Sponsor.
(a) GMACM
hereby represents and warrants to, and covenants with, the Sponsor, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
as
follows, as of the Closing Date:
(i) It
is
duly organized and is validly existing and in good standing under the laws
of
the State of Delaware and is duly authorized and qualified to transact any
and
all business contemplated by this Agreement to be conducted by it in any state
in which a Mortgaged Property related to a GMACM Mortgage Loan is located or
is
otherwise not required under applicable law to effect such qualification and,
in
any event, is in compliance with the doing business laws of any such state,
to
the extent necessary to ensure its ability to service the GMACM Mortgage Loans
in accordance with the terms of this Agreement and to perform any of its other
obligations under this Agreement in accordance with the terms
hereof.
(ii) It
has
the full corporate power and authority to service each GMACM Mortgage Loan,
and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly authorized by all
necessary corporate action on its part the execution, delivery and performance
of this Agreement; and this Agreement, assuming the due authorization, execution
and delivery hereof by the other parties hereto, constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms,
except that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought and further subject to public policy with respect to indemnity
and contribution under applicable securities law.
(iii) The
execution and delivery of this Agreement by it, the servicing of the GMACM
Mortgage Loans by it under this Agreement, the consummation of any other of
the
transactions contemplated by this Agreement, and the fulfillment of or
compliance with the terms hereof are in its ordinary course of business and
will
not (A) result in a material breach of any term or provision of its certificate
of formation or operating agreement or (B) materially conflict with, result
in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which it
is a
party or by which it may be bound, or (C) constitute a material violation of
any
statute, order or regulation applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it; and
it
is not in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair its ability
to perform or meet any of its obligations under this Agreement.
(iv) It
is an
approved servicer of conventional mortgage loans for Xxxxxx Xxx or Xxxxxxx
Mac
and is a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to sections 203 and 211 of the National Housing Act.
(v) No
litigation is pending or, to the best of its knowledge, threatened in writing,
against it that would materially and adversely affect the execution, delivery
or
enforceability of this Agreement or its ability to service the GMACM Mortgage
Loans or to perform any of its other obligations under this Agreement in
accordance with the terms hereof.
(vi) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for its execution, delivery and performance of, or compliance
with, this Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is required,
it
has obtained the same.
(vii) GMACM
has
accurately and fully reported, and will continue to accurately and fully report,
its borrower credit files to each of the credit repositories in a timely manner
materially in accordance with the Fair Credit Reporting Act and its implementing
legislation.
(viii) GMACM
is
a member of MERS in good standing, and will comply in all material respects
with
the rules and procedures of MERS in connection with the servicing of the GMACM
Mortgage Loans that are registered with MERS.
(ix) GMACM
will not waive any Prepayment Charge with respect to a GMACM Mortgage Loan
unless it is waived in accordance with the standard set forth in
Section 3.01.
If
the
covenant of GMACM set forth in Section 2.03(a)(ix), as applicable above is
breached by GMACM, GMACM will pay the amount of such waived Prepayment Charge,
for the benefit of the Holders of the Class I-P Certificates (with respect
to a
waiver of the Prepayment Charge relating to a Group I Mortgage Loan), for the
benefit of the Class II-P Certificates (with respect to a waiver of the
Prepayment Charge relating to a Group II Mortgage Loan), by depositing such
amount into the Custodial Account within ninety (90) days of the earlier of
discovery by GMACM or receipt of notice by GMACM of such breach. Notwithstanding
the foregoing, or anything to the contrary contained in this Agreement, GMACM
shall have no liability for a waiver of any Prepayment Charge in the event
that
GMACM’s determination to make such a waiver was made by GMACM in reliance on
information properly received by GMACM from any Person in accordance with the
terms of this Agreement.
(b) The
Sponsor hereby represents and warrants to and covenants with, the Depositor,
GMACM, the Master Servicer, the Securities Administrator and the Trustee as
follows, as of the Closing Date:
(i) The
Sponsor is duly organized, validly existing and in good standing under the
laws
of the State of Delaware and is duly authorized and qualified to transact any
and all business contemplated by this Agreement to be conducted by the Sponsor
in any state in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in any event,
is
in compliance with the doing business laws of any such state, to the extent
necessary to ensure its ability to enforce each Mortgage Loan, to sell the
Mortgage Loans in accordance with the terms of this Agreement and to perform
any
of its other obligations under this Agreement in accordance with the terms
hereof.
(ii) The
Sponsor has the full corporate power and authority to sell each Mortgage Loan,
and to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly authorized by all
necessary corporate action on the part of the Sponsor the execution, delivery
and performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of the Sponsor, enforceable
against the Sponsor in accordance with its terms, except that (a) the
enforceability hereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought and further
subject to public policy with respect to indemnity and contribution under
applicable securities law.
(iii) The
execution and delivery of this Agreement by the Sponsor, the sale of the
Mortgage Loans by the Sponsor under this Agreement, the consummation of any
other of the transactions contemplated by this Agreement, and the fulfillment
of
or compliance with the terms hereof are in the ordinary course of business
of
the Sponsor and will not (A) result in a material breach of any term or
provision of the charter or by-laws of the Sponsor or (B) materially conflict
with, result in a material breach, violation or acceleration of, or result
in a
material default under, the terms of any other material agreement or instrument
to which the Sponsor is a party or by which it may be bound, or (C) constitute
a
material violation of any statute, order or regulation applicable to the Sponsor
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over the Sponsor; and the Sponsor is not in breach or violation
of
any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair the Sponsor’s ability to perform or
meet any of its obligations under this Agreement.
(iv) The
Sponsor is an approved seller of conventional mortgage loans for Xxxxxx Mae
or
Xxxxxxx Mac and is a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing
Act.
(v) No
litigation is pending or, to the best of the Sponsor’s knowledge, threatened,
against the Sponsor that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or the ability of the Sponsor
to
sell the Mortgage Loans or to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(vi) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Sponsor
of,
or compliance by the Sponsor with, this Agreement or the consummation of the
transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, the Sponsor has obtained the
same.
(vii) The
representations and warranties set forth in Section 8 of the Mortgage Loan
Purchase Agreement are true and correct as of the Closing Date.
(viii) No
Mortgage Loan is subject to the Home Ownership and Equity Protection Act of
1994
or any comparable law and no Mortgage Loan is Classified and/or defined as
a
“high cost”, “covered”, “high risk home” or “predatory” loan under any other
state, federal or local law or regulation or ordinance (or a similarly
Classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans
having high interest rates, points and/or fees).
(ix) No
loan
is a High Cost Loan or Covered Loan, as applicable (as such terms are defined
in
Appendix E of the Standard & Poor's Glossary For File Format For LEVELS®
Version 5.6 Revised (attached hereto as Exhibit K) and no Mortgage Loan
originated on or after October 1, 2002 through March 6, 2003 is governed by
the
Georgia Fair Lending Act.
(x) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, fair housing, predatory, abusive
lending or disclosure laws applicable to the origination and servicing of the
Mortgage Loans have been complied with in all material respects.
(c) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty set forth in Section 2.03(c)(viii), (ix) and (x) and
Section 8 of the Mortgage Loan Purchase Agreement that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the party discovering such breach shall give prompt written notice thereof
to
the other parties. The Sponsor hereby covenants with respect to the
representations and warranties set forth in Section 2.03(c)(viii), (ix) and
(x) and Section 8 of the Mortgage Loan Purchase Agreement, that within
ninety (90) days of the discovery of a breach of any representation or warranty
set forth therein that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, it shall cure such breach in all
material respects and, if such breach is not so cured, (i) prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a “Deleted Mortgage
Loan”) from the Trust Fund and substitute in its place a Replacement Mortgage
Loan, in the manner and subject to the conditions set forth in this Section;
or
(ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee
at
the Purchase Price in the manner set forth below; provided that any such
substitution pursuant to (i) above or repurchase pursuant to (ii) above shall
not be effected prior to the delivery to the Trustee of an Opinion of Counsel
if
required by Section 2.05 and any such substitution pursuant to (i) above
shall not be effected prior to the additional delivery to the Custodian of
a
request for release in accordance with the Custodial Agreement. The Sponsor
shall promptly reimburse the Trustee for any expenses reasonably incurred by
the
Trustee in respect of enforcing the remedies for such breach. To enable the
related Servicer to amend the Mortgage Loan Schedule, the Sponsor shall, unless
it cures such breach in a timely fashion pursuant to this Section 2.03,
promptly notify the Trustee whether it intends either to repurchase, or to
substitute for, the Mortgage Loan affected by such breach. With respect to
the
representations and warranties in Section 8 of the Mortgage Loan Purchase
Agreement that are made to the best of the Sponsor’s knowledge, if it is
discovered by any of the Depositor, the Sponsor or the Trustee that the
substance of such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage Loan,
notwithstanding the Sponsor’s lack of knowledge with respect to the substance of
such representation or warranty, the Sponsor shall nevertheless be required
to
cure, substitute for or repurchase the affected Mortgage Loan in accordance
with
the foregoing. Notwithstanding the foregoing, any breach of a representation
or
warranty contained in clauses (xxxvii), (xxxviii), (xxxix), (xl) and/or (xlv)
of
Section 8 of the Mortgage Loan Purchase Agreement with respect to the Group
II-1 Mortgage Loans shall be automatically deemed to materially and adversely
affect the interests of the Certificateholders.
With
respect to any Replacement Mortgage Loan or Loans, the Sponsor shall deliver
to
the Custodian for the benefit of the Certificateholders such documents and
agreements as are required by Section 2 of the Custodial Agreement. No
substitution will be made in any calendar month after the Determination Date
for
such month. Scheduled Payments due with respect to Replacement Mortgage Loans
in
the Due Period related to the Distribution Date on which such proceeds are
to be
distributed shall not be part of the Trust Fund and will be retained by the
Sponsor. For the month of substitution, distributions to Certificateholders
will
include the Scheduled Payment due on any Deleted Mortgage Loan for the related
Due Period and thereafter the Sponsor shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan. The related Servicer shall
amend the Mortgage Loan Schedule for the benefit of the Certificateholders
to
reflect the removal of such Deleted Mortgage Loan and the substitution of the
Replacement Mortgage Loan or Loans and shall deliver the amended Mortgage Loan
Schedule to the Trustee, the Master Servicer and the Securities Administrator.
Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject
to the terms of this Agreement in all respects, and the Sponsor shall be deemed
to have made with respect to such Replacement Mortgage Loan or Loans, as of
the
date of substitution, the representations and warranties set forth in
Section 8 of the Mortgage Loan Purchase Agreement with respect to such
Mortgage Loan. Upon any such substitution and the deposit into the related
Custodial Account of the amount required to be deposited therein in connection
with such substitution as described in the following paragraph and receipt
by
the Custodian of a request for release for such Mortgage Loan in accordance
with
the Custodial Agreement, the Custodian on behalf of the Trustee shall release
to
the Sponsor the Mortgage File relating to such Deleted Mortgage Loan and held
for the benefit of the Certificateholders and the Trustee shall execute and
deliver at the Sponsor’s direction such instruments of transfer or assignment as
have been prepared by the Sponsor, in each case without recourse, as shall
be
necessary to vest in the Sponsor, or its respective designee, title to the
Trustee’s interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03. Neither the Trustee nor the Custodian shall have any further
responsibility with regard to such Mortgage File.
For
any
month in which the Sponsor substitutes one or more Replacement Mortgage Loans
for a Deleted Mortgage Loan, the Securities Administrator will determine the
amount (if any) by which the aggregate principal balance of all the Replacement
Mortgage Loans as of the date of substitution is less than the Stated Principal
Balance (after application of the principal portion of the Scheduled Payment
due
in the month of substitution) of such Deleted Mortgage Loan. An amount equal
to
the aggregate of such deficiencies, described in the preceding sentence for
any
Distribution Date (such amount, the “Substitution Adjustment Amount”) shall be
remitted to the related Servicer for deposit in the related Custodial Account
by
the Sponsor delivering such Replacement Mortgage Loan on or before the
Determination Date for the Distribution Date relating to the Prepayment Period
during which the related Mortgage Loan was required to be purchased or replaced
hereunder.
In
the
event that the Sponsor shall be required to repurchase a Mortgage Loan, the
Purchase Price therefor shall be remitted to the related Servicer for deposit
in
the related Custodial Account, on or before the Determination Date immediately
following the date on which the Sponsor was required to repurchase such Mortgage
Loan. The Purchase Price shall be remitted by the related Servicer to the
Securities Administrator on the Remittance Date occurring in the month
immediately following the month in which the Purchase Price was deposited in
the
related Custodial Account. In addition, upon such deposit of the Purchase Price,
the delivery of an Officer’s Certificate by the Servicer (which shall be
delivered no more than two (2) Business Days following such deposit) to the
Trustee certifying that the Purchase Price has been deposited in the related
Custodial Account, the delivery of an Opinion of Counsel if required by
Section 2.05 and the receipt of a Request for Release, the Trustee shall
release the related Mortgage File held for the benefit of the related
Certificateholders to the Sponsor, and the Trustee shall execute and deliver
at
such Person’s direction the related instruments of transfer or assignment
prepared by the Sponsor, in each case without recourse, as shall be necessary
to
transfer title from the Trustee for the benefit of the Certificateholders and
transfer the Trustee’s interest to the Sponsor to any Mortgage Loan purchased
pursuant to this Section 2.03. It is understood and agreed that the
obligation under this Agreement of the Sponsor to cure, repurchase or replace
any Mortgage Loan as to which a breach has occurred or is continuing shall
constitute the sole remedies against the Sponsor respecting such breach
available to each Certificateholder, the Depositor or the Trustee.
(d) The
Master Servicer hereby represents, warrants and covenants with GMACM, the
Depositor and the Trustee as follows, as of the Closing Date:
(i) The
Master Servicer is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business as
presently conducted by it and to execute, deliver and perform, and to enter
into
and consummate, all transactions contemplated by this Agreement. The Master
Servicer has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation of the Master Servicer,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or similar
laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof are
in
the ordinary course of business of the Master Servicer and will not (A) result
in a breach of any term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may be bound,
or any statute, order or regulation applicable to the Master Servicer of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is not a party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the Master
Servicer’s knowledge, would in the future materially and adversely affect, (x)
the ability of the Master Servicer to perform its obligations under this
Agreement or (y) the business, operations, financial condition, properties
or
assets of the Master Servicer taken as a whole;
(iv) The
Master Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant made by it and contained
in this Agreement;
(v) No
litigation is pending against the Master Servicer that would materially and
adversely affect the execution, delivery or enforceability of this Agreement or
the ability of the Master Servicer to perform any of its other obligations
hereunder in accordance with the terms hereof,
(vi) There
are
no actions or proceedings against, or investigations known to it of, the Master
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the Master
Servicer of its obligations under, or validity or enforceability of, this
Agreement; and
(vii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of, or compliance by the Master Servicer with, this Agreement or the
consummation by it of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date.
(e) The
representations and warranties set forth in Section 2.03 shall survive
delivery of the respective Mortgage Loans and Mortgage Files to the Trustee
or
the Custodian for the benefit of the Certificateholders.
Section
2.04 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to, and covenants, with GMACM, the
Sponsor, the Master Servicer, the Securities Administrator and the Trustee
as
follows, as of the date hereof and as of the Closing Date:
(i) The
Depositor is duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has full power and
authority (corporate and other) necessary to own or hold its properties and
to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement.
(ii) The
Depositor has the full corporate power and authority to execute, deliver and
perform, and to enter into and consummate the transactions contemplated by,
this
Agreement and has duly authorized, by all necessary corporate action on its
part, the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery hereof by
the
other parties hereto, constitutes a legal, valid and binding obligation of
the
Depositor, enforceable against the Depositor in accordance with its terms,
subject, as to enforceability, to (i) bankruptcy, insolvency, moratorium
receivership and other similar laws relating to creditors’ rights generally and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought and further
subject to public policy with respect to indemnity and contribution under
applicable securities law.
(iii) The
execution and delivery of this Agreement by the Depositor, the consummation
of
the transactions contemplated by this Agreement, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of business of
the
Depositor and will not (A) result in a material breach of any term or provision
of the charter or by-laws of the Depositor or (B) materially conflict with,
result in a material breach, violation or acceleration of, or result in a
material default under, the terms of any other material agreement or instrument
to which the Depositor is a party or by which it may be bound or (C) constitute
a material violation of any statute, order or regulation applicable to the
Depositor of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Depositor; and the Depositor is not in breach
or violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair the Depositor’s ability
to perform or meet any of its obligations under this Agreement.
(iv) No
litigation is pending, or, to the best of the Depositor’s knowledge, threatened,
against the Depositor that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or the ability of the Depositor
to
perform its obligations under this Agreement in accordance with the terms
hereof.
(v) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Depositor
of, or compliance by the Depositor with, this Agreement or the consummation
of
the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, the Depositor has obtained the
same.
The
Depositor hereby represents and warrants to the Trustee as of the Closing Date,
following the transfer of the Mortgage Loans to it by the Sponsor, the Depositor
had good title to the Mortgage Loans and the related Mortgage Notes were subject
to no offsets, claims, defenses or counterclaims.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the Trustee or
the Custodian for the benefit of the Certificateholders. Upon discovery by
the
Depositor, GMACM, the Master Servicer or the Trustee of a breach of such
representations and warranties, the party discovering such breach shall give
prompt written notice to the others and to each Rating Agency.
Section
2.05 Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
(a) Notwithstanding
any contrary provision of this Agreement, with respect to any Mortgage Loan
that
is not in default or as to which default is not imminent, no repurchase or
substitution pursuant to Sections 2.02 or 2.03 shall be made unless the Sponsor
delivers to the Trustee an Opinion of Counsel, addressed to the Trustee, to
the
effect that such repurchase or substitution would not (i) result in the
imposition of the tax on “prohibited transactions” of any REMIC created
hereunder or contributions after the Closing Date, as defined in sections
860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause any REMIC to
fail
to qualify as a REMIC at any time that any Certificates are outstanding. Any
Mortgage Loan as to which repurchase or substitution was delayed pursuant to
this paragraph shall be repurchased or the substitution therefor shall occur
(subject to compliance with Sections 2.02 or 2.03) upon the earlier of (a)
the
occurrence of a default or imminent default with respect to such Mortgage Loan
and (b) receipt by the Trustee of an Opinion of Counsel to the effect that
such
repurchase or substitution, as applicable, will not result in the events
described in clause (i) or clause (ii) of the preceding sentence.
(b) Upon
discovery by the Depositor or the Sponsor that any Mortgage Loan does not
constitute a “qualified mortgage” within the meaning of section 860G(a)(3) of
the Code, the party discovering such fact shall promptly (and in any event
within five (5) Business Days of discovery) give written notice thereof to
the
other parties and the Trustee. In connection therewith, the Sponsor, at its
option, shall either (i) substitute, if the conditions in Section 2.03(c)
with respect to substitutions are satisfied, a Replacement Mortgage Loan for
the
affected Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within
ninety (90) days of such discovery in the same manner as it would a Mortgage
Loan for a breach of representation or warranty contained in Section 2.03.
The Trustee shall reconvey to the Sponsor the Mortgage Loan to be released
pursuant hereto in the same manner, and on the same terms and conditions, as
it
would a Mortgage Loan repurchased for breach of a representation or warranty
contained in Section 2.03.
Section
2.06 Issuance
of the REMIC IA Regular Interests and REMIC IIA Regular
Interests.
(a) The
Trustee acknowledges the assignment to it of the Group I Mortgage Loans and
the
delivery to the Custodian on its behalf of the related Mortgage Files, subject
to the provisions of Section 2.01 and Section 2.02, together with the
assignment to it of all other assets included in REMIC IA, the receipt of
which is hereby acknowledged. The interests evidenced by the Class R-1A
Interest, together with the REMIC IA Regular Interests, constitute the
entire beneficial ownership interest in REMIC IA. The rights of the Holders
of the Class R-1A Interest and REMIC IB (as Holder of the REMIC IA
Regular Interests) to receive distributions from the proceeds of REMIC IA
in respect of the Class R-1A Interest and the REMIC IA Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-1A Interest and the REMIC IA 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 the Custodian on its behalf of the related Mortgage Files, subject
to the provisions of Section 2.01 and Section 2.02, together with the
assignment to it of all other assets included in REMIC IIA, the receipt of
which
is hereby acknowledged. The interests evidenced by the Class R-2A Interest,
together with the REMIC IIA Regular Interests, constitute the entire beneficial
ownership interest in REMIC IIA. The rights of the Holders of the Class R-2A
Interest and REMIC IIB (as Holder of the REMIC IIA Regular Interests) to receive
distributions from the proceeds of REMIC IIA in respect of the Class R-2A
Interest and the REMIC IIA Regular Interests, respectively, and all ownership
interests evidenced or constituted by the Class R-2A Interest and the REMIC
IIA
Regular Interests, shall be as set forth in this Agreement.
Section
2.07 Conveyance
of the REMIC IA Regular Interests, REMIC IB Regular Interests, Class
I-X Interest, Class I-P Interest, Class I-IO Interest, REMIC IIA Regular
Interests, REMIC IIB Regular Interests, Class II-X Interest, Class II-P Interest
and Class II-IO Interest.
(a) 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 IA
Regular Interests for the benefit of the Class R-1B Interest and REMIC IB
(as Holder of the REMIC IA Regular Interests). The Trustee acknowledges
receipt of the REMIC IA Regular Interests and declares that it holds and
will hold the same in trust for the exclusive use and benefit of all present
and
future Holders of the Class R-1B Interest and REMIC IB (as Holder of the
REMIC IA Regular Interests). The rights of the Holder of the Class R-1B
Interest and REMIC IB (as Holder of the REMIC IA Regular Interests) to
receive distributions from the proceeds of REMIC IB in respect of the Class
R-1B Interest and REMIC IB Regular Interests, respectively, and all
ownership interests evidenced or constituted by the Class R-1B Interest and
the
REMIC IB Regular Interests, shall be as set forth in this Agreement. The
Class R-1B Interest and the REMIC IB Regular Interests shall constitute the
entire beneficial ownership interest in REMIC IB.
(b) 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 IB
Regular Interests for the benefit of the Class R-1C Interest and REMIC IC (as
Holder of the REMIC IB Regular Interests). The Trustee acknowledges receipt
of the REMIC IB Regular Interests and declares that it holds and will hold
the same in trust for the exclusive use and benefit of all present and future
Holders of the Class R-1C Interest and REMIC IC (as Holder of the REMIC IB
Regular Interests). The rights of the Holder of the Class R-1C Interest and
REMIC IC (as Holder of the REMIC IB Regular Interests) to receive
distributions from the proceeds of REMIC IC in respect of the Class R-1C
Interest and Group I Regular Certificates (other
than the Class I-X Certificates and Class I-P Certificates), the Class I-X
Interest, Class I-P Interest and Class I-IO Interest,
respectively, and all ownership interests evidenced or constituted by the Class
R-1C Interest and the Group I Regular Certificates (other than the Class I-X
Certificates and Class I-P Certificates), the Class I-X Interest, Class I-P
Interest and Class I-IO Interest, shall be as set forth in this Agreement.
The
Class R-1C Interest and the Group I Regular Certificates (other than the Class
I-X Certificates and Class I-P Certificates), the Class I-X Interest, Class
I-P
Interest and Class I-IO Interest shall constitute the entire beneficial
ownership interest in REMIC IC.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without
recourse, all the right, title and interest of the Depositor in and to the
Class
I-X Interest for the benefit of the Class R-1D Interest and REMIC ID (as holder
of the Class I-X Interest). The Trustee acknowledges receipt of the Class I-X
Interest and declares that it holds and will hold the same in trust for the
exclusive use and benefit of all present and future Holders of the Class R-1D
Interest and REMIC ID (as holder of the Class I-X Interest). The rights of
the
Holder of the Class R-1D Interest and REMIC ID (as holder of the Class I-X
Interest) to receive distributions from the proceeds of REMIC ID in respect
of
the Class R-1D Interest, the Class I-X Certificates, and all ownership interests
evidenced or constituted by the Class R-1D Interest and the Class I-X
Certificates, shall be as set forth in this Agreement. The Class R-1D Interest
and the Class I-X Certificates shall constitute the entire beneficial ownership
interest in REMIC ID.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without
recourse, all the right, title and interest of the Depositor in and to the
Class
I-P Interest for the benefit of the Class R-1E Interest and REMIC IE (as holder
of the Class I-P Interest). The Trustee acknowledges receipt of the Class I-P
Interest and declares that it holds and will hold the same in trust for the
exclusive use and benefit of all present and future Holders of the Class R-1E
Interest and REMIC IE (as holder of the Class I-P Interest). The rights of
the
Holder of the Class R-1E Interest and REMIC IE (as holder of the Class I-P
Interest) to receive distributions from the proceeds of REMIC IE in respect
of
the Class R-1E Interest, the Class I-P Certificates, and all ownership interests
evidenced or constituted by the Class R-1E Interest and the Class I-P
Certificates, shall be as set forth in this Agreement. The Class R-1E Interest
and the Class I-P Certificates shall constitute the entire beneficial ownership
interest in REMIC IE.
(e) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without
recourse, all the right, title and interest of the Depositor in and to the
Class
I-IO Interest for the benefit of the Class R-1F Interest and REMIC IF (as holder
of the Class I-IO Interest). The Trustee acknowledges receipt of the Class
I-IO
Interest and declares that it holds and will hold the same in trust for the
exclusive use and benefit of all present and future Holders of the Class R-1F
Interest and REMIC 1F (as holder of the Class I-IO Interest). The rights of
the
Holder of the Class R-1F Interest and REMIC IF (as holder of the Class I-IO
Interest) to receive distributions from the proceeds of REMIC IF in respect
of
the Class R-1F Interest, REMIC IF Regular Interest Swap-IO, and all ownership
interests evidenced or constituted by the Class R-1F Interest and REMIC IF
Regular Interest Swap-IO, shall be as set forth in this Agreement. The Class
R-1F Interest and REMIC IF Regular Interest Swap-IO shall constitute the entire
beneficial ownership interest in REMIC IF.
(f) 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 IIA
Regular Interests for the benefit of the Class R-2B Interest and REMIC IIB
(as
Holder of the REMIC IIA Regular Interests). The Trustee acknowledges receipt
of
the REMIC IIA Regular Interests and declares that it holds and will hold the
same in trust for the exclusive use and benefit of all present and future
Holders of the Class R-2B Interest and REMIC IIB (as Holder of the REMIC IIA
Regular Interests). The rights of the Holder of the Class R-2B Interest and
REMIC IIB (as Holder of the REMIC IIA Regular Interests) to receive
distributions from the proceeds of REMIC IIB in respect of the Class R-2B
Interest and the REMIC IIB Regular Interests, respectively, and all ownership
interests evidenced or constituted by the Class R-2B Interest and the REMIC
IIB
Regular Interests, shall be as set forth in this Agreement. The Class R-2B
Interest and the REMIC IIB Regular Interests shall constitute the entire
beneficial ownership interest in REMIC IIB.
(g) 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 IIB
Regular Interests for the benefit of the Class R-2C Interest and REMIC IIC
(as
Holder of the REMIC IIB Regular Interests). The Trustee acknowledges receipt
of
the REMIC IIB Regular Interests and declares that it holds and will hold the
same in trust for the exclusive use and benefit of all present and future
Holders of the Class R-2C Interest and REMIC IIC (as Holder of the REMIC IIB
Regular Interests). The rights of the Holder of the Class R-2C Interest and
REMIC IIC (as Holder of the REMIC IIB Regular Interests) to receive
distributions from the proceeds of REMIC IIC in respect of the Class R-2C
Interest and Group II Regular Certificates (other than the Class II-X
Certificates and Class II-P Certificates), the Class II-X Interest, Class II-P
Interest and Class II-IO Interest, respectively, and all ownership interests
evidenced or constituted by the Class R-2C Interest and the Group II Regular
Certificates (other than the Class II-X Certificates and Class II-P
Certificates), the Class II-X Interest, Class II-P Interest and Class II-IO
Interest, shall be as set forth in this Agreement. The Class R-2C Interest
and
the Group II Regular Certificates (other than the Class II-X Certificates and
Class II-P Certificates), the Class II-X Interest, Class II-P Interest and
Class
II-IO Interest shall constitute the entire beneficial ownership interest in
REMIC IIC.
(h) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without
recourse, all the right, title and interest of the Depositor in and to the
Class
II-X Interest for the benefit of the Class R-2D Interest and REMIC IID (as
holder of the Class II-X Interest). The Trustee acknowledges receipt of the
Class II-X Interest and declares that it holds and will hold the same in trust
for the exclusive use and benefit of all present and future Holders of the
Class
R-2D Interest and REMIC IID (as holder of the Class II-X Interest). The rights
of the Holder of the Class R-2D Interest and REMIC IID (as holder of the Class
II-X Interest) to receive distributions from the proceeds of REMIC IID in
respect of the Class R-2D Interest, the Class II-X Certificates, and all
ownership interests evidenced or constituted by the Class R-2D Interest and
the
Class II-X Certificates, shall be as set forth in this Agreement. The Class
R-2D
Interest and the Class II-X Certificates shall constitute the entire beneficial
ownership interest in REMIC IID.
(i) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without
recourse, all the right, title and interest of the Depositor in and to the
Class
II-P Interest for the benefit of the Class R-2E Interest and REMIC IIE (as
holder of the Class II-P Interest). The Trustee acknowledges receipt of the
Class II-P Interest and declares that it holds and will hold the same in trust
for the exclusive use and benefit of all present and future Holders of the
Class
R-2E Interest and REMIC IE (as holder of the Class II-P Interest). The rights
of
the Holder of the Class R-2E Interest and REMIC IIE (as holder of the Class
II-P
Interest) to receive distributions from the proceeds of REMIC IIE in respect
of
the Class R-2E Interest, the Class II-P Certificates, and all ownership
interests evidenced or constituted by the Class R-2E Interest and the Class
II-P
Certificates, shall be as set forth in this Agreement. The Class R-2E Interest
and the Class II-P Certificates shall constitute the entire beneficial ownership
interest in REMIC IIE.
(j) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without
recourse, all the right, title and interest of the Depositor in and to the
Class
II-IO Interest for the benefit of the Class R-2F Interest and REMIC IIF (as
holder of the Class II-IO Interest). The Trustee acknowledges receipt of the
Class II-IO Interest and declares that it holds and will hold the same in trust
for the exclusive use and benefit of all present and future Holders of the
Class
R-2F Interest and REMIC IIF (as holder of the Class II-IO Interest). The rights
of the Holder of the Class R-2F Interest and REMIC IIF (as holder of the Class
II-IO Interest) to receive distributions from the proceeds of REMIC IIF in
respect of the Class R-2F Interest, REMIC IIF Regular Interest IO, and all
ownership interests evidenced or constituted by the Class R-2F Interest and
REMIC IIF Regular Interest IO, shall be as set forth in this Agreement. The
Class R-2F Interest and REMIC IIF Regular Interest IO shall constitute the
entire beneficial ownership interest in REMIC IIF.
Section
2.08 Issuance
of Class I-R Certificates, the Class II-R Certificates, the Class I-R-X
Certificates and the Class II-R-X Certificates.
(a) The
Trustee acknowledges the assignment to it of the REMIC IA Regular Interests
and the REMIC IB Regular Interests and, concurrently therewith and in
exchange therefor, pursuant to the written request of the Depositor executed
by
an officer of the Depositor, the Securities Administrator has executed,
authenticated and delivered to or upon the order of the Depositor, the Class
I-R
Certificates in authorized denominations.
(b) The
Trustee acknowledges the assignment to it of the REMIC IIA Regular Interests
and
the REMIC IIB Regular Interests and, concurrently therewith and in exchange
therefor, pursuant to the written request of the Depositor executed by an
officer of the Depositor, the Securities Administrator has executed,
authenticated and delivered to or upon the order of the Depositor, the Class
II-R Certificates in authorized denominations.
(c) The
Trustee acknowledges the assignment to it of the Class I-X Interest, the Class
I-P Interest and the Class I-IO Interest and, concurrently therewith and in
exchange therefor, pursuant to the written request of the Depositor executed
by
an officer of the Depositor, the Securities Administrator has executed,
authenticated and delivered to or upon the order of the Depositor, the Class
I-R-X Certificates in authorized denominations.
(d) The
Trustee acknowledges the assignment to it of the Class II-X Interest, the Class
II-P Interest and the Class II-IO Interest and, concurrently therewith and
in
exchange therefor, pursuant to the written request of the Depositor executed
by
an officer of the Depositor, the Securities Administrator has executed,
authenticated and delivered to or upon the order of the Depositor, the Class
II-R-X Certificates in authorized denominations.
Section
2.09 Establishment
of Trust.
The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust to be known,
for convenience, as “Nomura Home Equity Loan, Inc., Alternative Loan Trust,
Series 2007-1” and does hereby appoint HSBC Bank USA, National Association, as
Trustee in accordance with the provisions of this Agreement.
Section
2.10 Purpose
and Powers of the Trust.
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing or other than as required or authorized by the terms of this Agreement
while any Certificate is outstanding, and this Section 2.10 may not be
amended, without the consent of the Certificateholders evidencing 51% or more
of
the aggregate voting rights of the Certificates.
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS; ACCOUNTS
Section
3.01 GMACM
to act as Servicer of the related Mortgage Loans.
The
obligations of GMACM hereunder to service and administer the Mortgage Loans
shall be limited to the GMAC Mortgage Loans, and with respect to the duties
and
obligations of GMACM, references herein to the related Mortgage Loans shall
be
limited to the GMACM Mortgage Loans (and the related proceeds thereof and
related REO Properties) and references to the related Servicer or such Servicer
in connection with the performance of the servicing obligations specified in
this Agreement and all obligations arising hereunder by the related Servicer
in
connection with the servicing of the related Mortgage Loans shall be deemed
to
be references to GMACM or any successor thereto responsible for the servicing
and administration of the GMACM Mortgage Loans pursuant to the terms of this
Agreement. Any reference in this Section 3,01 to the “Servicer” or the
“related Servicer” shall be deemed to refer to GMACM unless indicated otherwise,
and any reference to the “Mortgage Loans” or “related Mortgage Loans” shall be
deemed to refer to the GMACM Mortgage Loans unless indicated otherwise. The
Xxxxx Fargo Mortgage Loans will be serviced and administered by Xxxxx Fargo
pursuant to the terms and provisions of the Servicing Agreement and Xxxxx Fargo
shall have no obligation to adhere to the provisions of this Agreement in
connection with the servicing and administration of the Xxxxx Fargo Mortgage
Loans. In addition, GMACM will have no responsibility to service or administer
the Xxxxx Fargo Mortgage Loans or have any other obligation or liability with
respect to the Xxxxx Fargo Mortgage Loans or the Servicing Agreement.
GMACM
shall service and administer the related Mortgage Loans on behalf of the Trust
Fund and in the best interest of and for the benefit of the Certificateholders
(as determined by GMACM in its reasonable judgment) in accordance with the
terms
of this Agreement and the related Mortgage Loans and to the extent consistent
with such terms and in accordance with and exercising the same care in
performing those practices that GMACM customarily employs and exercises in
servicing and administering mortgage loans for its own account and of the same
type as such Mortgage Loans in the jurisdiction in which the related Mortgaged
Properties are located (including, compliance with all applicable federal,
state
and local laws).
To
the
extent consistent with the foregoing, GMACM shall seek the timely and complete
recovery of principal and interest on the Mortgage Notes related to the Mortgage
Loans and shall waive a Prepayment Charge only under the following
circumstances: (i) such waiver is standard and customary in servicing similar
mortgage loans and (ii) either (A) such waiver is related to a default or
reasonably foreseeable default and would, in the reasonable judgment of GMACM,
maximize recovery of total proceeds taking into account the value of such
Prepayment Charge and the related Mortgage Loan and, if such waiver is made
in
connection with a refinancing of the related Mortgage Loan, such refinancing
is
related to a default or a reasonably foreseeable default or (B) such waiver
is
made in connection with a refinancing of the related Mortgage Loan unrelated
to
a default or a reasonably foreseeable default where (x) the related Mortgagor
has stated to the related Servicer an intention to refinance the related
Mortgage Loan and (y) the related Servicer has concluded in its reasonable
judgment that the waiver of such Prepayment Charge would induce such Mortgagor
to refinance with GMACM, (iii) GMACM reasonably believes such Prepayment Charge
is unenforceable in accordance with applicable law or the collection of such
related Prepayment Charge would otherwise violate applicable law or (iv) the
collection of such Prepayment Charge would be considered “predatory” pursuant to
written guidance published or issued by any applicable federal, state or local
regulatory authority acting in its official capacity and having jurisdiction
over such matters. If a Prepayment Charge is waived as permitted by meeting
both
of the standards described in clauses (i) and (ii)(B) above, then GMACM is
required to pay the amount of such waived Prepayment Charge (the “Servicer
Prepayment Charge Payment Amount”), for the benefit of the Holders of the Class
P Certificates, by depositing such amount into the related Custodial Account
within ninety (90) days of notice or discovery of such waiver meeting the
standard set forth in both clauses (i) and (ii)(B) above; provided, however,
that GMACM shall not waive more than five percent (5%) of the Prepayment Charges
(by number of Prepayment Charges) set forth on the Mortgage Loan Schedule in
accordance with clauses (i) and (ii)(B) above. Notwithstanding any other
provisions of this Agreement, any payments made by GMACM in respect of any
waived Prepayment Charges pursuant to clauses (i) and (ii)(B) above and the
preceding sentence shall be deemed to be paid outside of the Trust
Fund.
Notwithstanding
anything to the contrary contained in this Agreement, if GMACM waives a
Prepayment Charge in breach of the foregoing paragraph, GMACM will pay the
amount of such waived Prepayment Charge, from its own funds without any right
of
reimbursement, for the benefit of the Holders of the Class I-P Certificates
or
Class II-P Certificates, as applicable, by depositing such amount into the
Custodial Account within ninety (90) days of the earlier of discovery by GMACM
or receipt of notice by GMACM of such breach. Furthermore, notwithstanding
any
other provisions of this Agreement, any payments made by GMACM in respect of
any
waived Prepayment Charges pursuant to this paragraph shall be deemed to be
paid
outside of the Trust Fund.
Subject
only to the above-described applicable servicing standards (the “Accepted
Servicing Practices”) and the terms of this Agreement and of the respective
Mortgage Loans, GMACM shall have full power and authority, acting alone and/or
through Subservicers as provided in Section 3.03, to do or cause to be done
any and all things that it may deem necessary or desirable in connection with
such servicing and administration, including but not limited to, the power
and
authority, subject to the terms hereof (i) to execute and deliver, on behalf
of
the Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any related Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but only
in the manner provided herein), (iii) to collect any Insurance Proceeds and
other Liquidation Proceeds, and (iv) subject to Section 3.09, to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan serviced by GMACM.
Without
limiting the generality of the foregoing, GMACM, in its own name or in the
name
of the Trust, the Depositor or the Trustee, is hereby authorized and empowered
by the Trust, the Depositor and the Trustee, when GMACM believes it appropriate
in its reasonable judgment, to execute and deliver, on behalf of the Trustee,
the Depositor, the Certificateholders or any of them, 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 related Mortgage Loans, and
with respect to the related Mortgaged Properties held for the benefit of the
Certificateholders. GMACM shall prepare and deliver to the Depositor and/or
the
Trustee such documents requiring execution and delivery by any or all of them
as
are necessary or appropriate to enable GMACM to service and administer the
related Mortgage Loans. Upon receipt of such documents, the Depositor and/or
the
Trustee shall execute such documents and deliver them to GMACM. In addition,
the
Trustee shall execute, at the written request of GMACM, and furnish to it any
special or limited powers of attorney agreeable to the Trustee and its counsel
applicable to all locations in which the Mortgaged Properties are located and
other documents necessary or appropriate to enable GMACM to carry out its
servicing and administrative duties, provided such limited powers of attorney
or
other documents shall be prepared by GMACM and submitted to the Trustee for
review prior to execution. Notwithstanding anything to the contrary herein,
the
Trustee shall in no way be liable or responsible for the willful malfeasance
of
GMACM, or for the wrongful or negligent actions taken by GMACM, while GMACM
is
acting pursuant to the powers granted to it in this paragraph.
In
accordance with the standards of the first paragraph of this Section 3.01,
GMACM shall advance or cause to be advanced funds as necessary for the purpose
of effecting the payment of taxes and assessments on the Mortgaged Properties
relating to the related Mortgage Loans in order to preserve the lien on the
related Mortgaged Property, which advances shall be reimbursable in the first
instance from related collections from the Mortgagors pursuant to
Section 3.27, and further as provided in Section 3.32. All costs
incurred by GMACM, if any, in effecting the payments of such taxes and
assessments on the related Mortgaged Properties and related insurance premiums
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the Stated Principal Balance under the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so
permit.
Section
3.02 Due-on-Sale
Clauses; Assumption Agreements.
(a) Except
as
otherwise provided in this Section 3.02, when any Mortgaged Property has
been or is about to be conveyed by the Mortgagor, the related Servicer shall
to
the extent that it has knowledge of such conveyance, enforce any due-on-sale
clause contained in any Mortgage Note or Mortgage, to the extent permitted
under
applicable law and governmental regulations, but only to the extent that such
enforcement will not adversely affect or jeopardize coverage under any Required
Insurance Policy. Notwithstanding the foregoing, no Servicer shall be required
to exercise such rights with respect to a Mortgage Loan serviced by such
Servicer if the Person to whom the related Mortgaged Property has been conveyed
or is proposed to be conveyed satisfies the terms and conditions contained
in
the Mortgage Note and Mortgage related thereto and the consent of the mortgagee
under such Mortgage Note or Mortgage is not otherwise so required under such
Mortgage Note or Mortgage as a condition to such transfer. In the event that
the
related Servicer is prohibited by law from enforcing any such due-on-sale
clause, or if coverage under any Required Insurance Policy would be adversely
affected, or if nonenforcement is otherwise permitted hereunder, such Servicer
is authorized, subject to Section 3.02(b), to take or enter into an
assumption and modification agreement from or with the person to whom such
property has been or is about to be conveyed, pursuant to which such person
becomes liable under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon, provided that the related
Mortgage Loan shall continue to be covered (if so covered before the related
Servicer enters into such an agreement) by the applicable Required Insurance
Policies. The related Servicer, subject to Section 3.02(b), is also
authorized with the prior approval of the insurers under any Required Insurance
Policies 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 Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, no Servicer shall be deemed to be in default
under this Section 3.02(a) by reason of any transfer or assumption that
such Servicer reasonably believes it is restricted by law from
preventing.
(b) Subject
to the related Servicer’s duty to enforce any due-on-sale clause to the extent
set forth in Section 3.02(a), in any case in which a Mortgaged Property has
been conveyed to a Person by a Mortgagor, and such Person is to enter into
an
assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an instrument
of release signed by the Trustee is required releasing the Mortgagor from
liability on the related Mortgage Loan, the related Servicer shall prepare
and
deliver or cause to be prepared and delivered to the Trustee for signature
and
shall direct, in writing, the Trustee to execute the assumption agreement with
the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such Person.
In connection with any such assumption, no material term of the Mortgage Note
(including, but not limited to, (a) the Mortgage Rate, (b) the amount of the
Scheduled Payment, (c) the related Index, Gross Margin, Periodic Rate Cap,
Adjustment Date, Maximum Interest Rate or Minimum Mortgage Interest Rate, and
(d) any other term affecting the amount or timing of payment on the related
Mortgage Loan) may be changed. In addition, the substitute Mortgagor and the
Mortgaged Property must be acceptable to the related Servicer in accordance
with
the servicing standard set forth in Section 3.01. The related Servicer
shall notify the Trustee that any such substitution or assumption agreement
has
been completed by forwarding to the Custodian the original of such substitution
or assumption agreement, which in the case of the original 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. Any fee collected by a Servicer for entering into
an assumption or substitution of liability agreement will be retained by such
Servicer as additional servicing compensation.
Section
3.03 Subservicers.
The
related Servicer shall perform all of its servicing responsibilities hereunder
or may cause a Subservicer to perform any such servicing responsibilities on
its
behalf, but the use by such Servicer of a Subservicer shall not release such
Servicer from any of its obligations hereunder with respect to the related
Mortgage Loans. Any subservicing arrangement and the terms of the related
Subservicing Agreement must provide for the servicing of such Mortgage Loans
in
a manner consistent with the servicing arrangements contemplated hereunder
and
the related Servicer shall cause any Subservicer to comply with the provisions
of this Agreement (including, without limitation, to provide the information
required to be delivered under Sections 3.13, 3.14 and 3.18 hereof), to the
same
extent as if such Subservicer were the related Servicer. Each Subservicer 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 Subservicer to perform its obligations
hereunder and under the Subservicing Agreement and (ii) a Xxxxxxx Mac or Xxxxxx
Mae approved mortgage servicer. The related Servicer shall promptly, upon
request, provide to the Master Servicer and the Depositor a written description
(in form and substance satisfactory to the Master Servicer and the Depositor)
of
the role and function of each Subservicer utilized by such Servicer, specifying
(i) the identity of each such Subservicer, (ii) which (if any) of such
Subservicer is “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, and (iii) which elements of the Servicing Criteria
will be addressed in assessments of compliance provided by each Subservicer
identified pursuant to clause (ii) of this subsection; provided, however, that
no Servicer shall be required to provide the information in clause (i) or (ii)
of this subsection until such time that the applicable assessment of compliance
is due in accordance with Section 3.14 of this Agreement. The related
Servicer shall be responsible for obtaining from each Subservicer engaged by
it
and delivering to the Master Servicer any annual statement of compliance,
assessment of compliance, attestation report and Xxxxxxxx-Xxxxx related
certification as and when required to be delivered. The related Servicer shall
pay all fees of each of its Subservicers from its own funds.
Notwithstanding
the foregoing, with respect to the related Mortgage Loans, the related Servicer
shall be entitled to outsource one or more separate servicing functions to
any
person that does not meet the eligibility requirements for a Subservicer (each
such person, a “Subcontractor”), so long as such outsourcing does not constitute
the delegation of such Servicer’s obligation to perform all or substantially all
of the servicing of the related Mortgage Loans to such Subcontractor. The
related Servicer shall promptly, upon request, provide to the Master Servicer
and the Depositor a written description (in form and substance satisfactory
to
the Master Servicer and the Depositor) of the role and function of each
Subcontractor utilized by such Servicer, specifying (i) the identity of each
such Subcontractor, (ii) which (if any) of such Subservicer and Subcontractors
are “participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this subsection. In such event, the use by a Servicer
of any such Subcontractor shall not release such Servicer from any of its
obligations hereunder and such Servicer shall remain responsible hereunder
for
all acts and omissions of such Subcontractor as fully as if such acts and
omissions were those of the related Servicer, and the related Servicer shall
pay
all fees and expenses of the Subcontractor from the related Servicer’s own
funds.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the related Servicer shall cause any such Subcontractor used
by
it for the benefit of the Master Servicer, the Trustee and the Depositor to
comply with the provisions of Sections 3.13, 3.14 and 3.18 of this Agreement
to
the same extent as if such Subcontractor were such Servicer. The related
Servicer shall be responsible for obtaining from each Subcontractor and
delivering to the Master Servicer and any Depositor any compliance statement,
assessment of compliance, attestation report and Xxxxxxxx-Xxxxx related
certification required to be delivered by such Subcontractor under
Section 3.13, 3.14 and 3.18, in each case as and when required to be
delivered.
At
the
cost and expense of the related Servicer, without any right of reimbursement
from the related Custodial Account, such Servicer shall be entitled to terminate
the rights and responsibilities of a Subservicer or Subcontractor and arrange
for any servicing responsibilities to be performed by a successor Subservicer
or
Subcontractor; provided, however, that nothing contained herein shall be deemed
to prevent or prohibit the related Servicer, at its option, from electing to
service the related Mortgage Loans itself. In the event that the related
Servicer’s responsibilities and duties under this Agreement are terminated
pursuant to Section 8.01, such Servicer shall at its own cost and expense
terminate the rights and responsibilities of each Subservicer and Subcontractor
with respect to the related Mortgage Loans effective as of the date of such
Servicer’s termination. The related Servicer shall pay all fees, expenses or
penalties necessary in order to terminate the rights and responsibilities of
each Subservicer and Subcontractor from such Servicer’s own funds without
reimbursement from the Trust Fund.
Notwithstanding
the foregoing, no Servicer shall be relieved of its obligations hereunder with
respect to the related Mortgage Loans and shall be obligated to the same extent
and under the same terms and conditions as if it alone were servicing and
administering the related Mortgage Loans. The related Servicer shall be entitled
to enter into an agreement with a Subservicer or Subcontractor, as applicable,
for indemnification of such Servicer by the Subservicer or Subcontractor, as
applicable, and nothing contained in this Agreement shall be deemed to limit
or
modify such indemnification.
Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving a Subservicer or Subcontractor shall be deemed to
be
between such Subservicer or Subcontractor and the related Servicer alone, and
neither the Master Servicer nor the Trustee shall have any obligations, duties
or liabilities with respect to such Subservicer or Subcontractor including
any
obligation, duty or liability of Master Servicer or the Trustee to pay such
Subservicer’s or Subcontractor’s fees and expenses or any differential in the
amount of the servicing fee paid hereunder and the amount necessary to induce
any successor servicer to act as successor servicer under this Agreement and
the
transactions provided for in this Agreement. For purposes of remittances to
the
Securities Administrator pursuant to this Agreement, the related Servicer shall
be deemed to have received a payment on a Mortgage Loan when a Subservicer
or
Subcontractor engaged by such Servicer has received such payment.
Section
3.04 Documents,
Records and Funds in Possession of a Servicer To Be Held for
Trustee.
Notwithstanding
any other provisions of this Agreement, the related Servicer shall transmit
to
the Trustee as required by this Agreement all documents and instruments in
respect of a Mortgage Loan serviced by such Servicer coming into the possession
of such Servicer from time to time and shall account fully to the Securities
Administrator for any funds received by such Servicer or that otherwise are
collected by such Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any such Mortgage Loan. All Mortgage Files and funds collected or
held by, or under the control of, a Servicer in respect of any Mortgage Loans
serviced by such Servicer, whether from the collection of principal and interest
payments or from Liquidation Proceeds, including but not limited to, any funds
on deposit in the related Custodial Account, shall be held by such Servicer
for
and on behalf of the Trustee and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement.
The related Servicer also agrees that it shall not create, incur or subject
any
Mortgage File or any funds that are deposited in the related Custodial Account,
the Distribution Account or in any Escrow Account, or any funds that otherwise
are or may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy,
writ
of attachment or other encumbrance, or assert by legal action or otherwise
any
claim or right of set off against any Mortgage File or any funds collected
on,
or in connection with, a Mortgage Loan, except, however, that such Servicer
shall be entitled to set off against and deduct from any such funds any amounts
that are properly due and payable to the related Servicer under this
Agreement.
Section
3.05 Maintenance
of Hazard Insurance.
(a) The
related Servicer shall cause to be maintained for each Mortgage Loan serviced
by
such Servicer hazard insurance with extended coverage on the Mortgaged Property
in an amount which is at least equal to the lesser of (i) the Stated Principal
Balance of such Mortgage Loan and (ii) 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 related Servicer shall also cause to be
maintained hazard 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 REO Property and (ii) the Stated
Principal Balance of the related Mortgage Loan at the time it became an REO
Property. The related 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 collected by the related 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 such Servicer would follow in servicing
loans held for its own account, subject to the terms and conditions of the
related Mortgage and Mortgage Note and in accordance with the servicing standard
set forth in Section 3.01) shall be deposited in the related Custodial
Account, subject to withdrawal pursuant to Section 3.27. Any cost incurred
by the related Servicer in maintaining any such insurance shall not, for the
purpose of calculating distributions to related Certificateholders, be added
to
the Stated 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 a Mortgaged
Property 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 related Servicer shall
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 Stated 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 related Servicer shall obtain and maintain a blanket policy
with
an insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac, or having a General Policy
Rating of B:VI 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 serviced by such Servicer, it shall conclusively be deemed to
have satisfied its obligations as set forth in the first two sentences of this
Section 3.05, it being understood and agreed that such policy may contain a
deductible clause, in which case the related 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 3.05, and there shall have been one or more losses which would have
been covered by such policy, deposit to the related Custodial Account maintained
by such Servicer 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 related Mortgage Loans, the
related 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) The
related 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 such Servicer’s obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements
of
Xxxxxx Mae or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans, unless
such Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. The related Servicer shall provide the Master Servicer, upon
request, with copies of such insurance policies and fidelity bond (or waiver
thereof). The related Servicer shall also maintain a fidelity bond in the form
and amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, unless
such Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. The related Servicer shall be deemed to have complied with this
provision if one of its Affiliates 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 such Servicer. Any such errors and
omissions policy and fidelity bond shall by its terms not be cancelable without
thirty (30) days’ prior written notice to the Master Servicer. The related
Servicer shall also cause its Subservicers to maintain a policy of insurance
covering errors and omissions and a fidelity bond which would meet such
requirements.
Section
3.06 Presentment
of Claims and Collection of Proceeds.
The
related Servicer shall prepare and present on behalf of the Trustee and the
Certificateholders all claims under the applicable Insurance Policies and take
such actions (including the negotiation, settlement, compromise or enforcement
of the insured’s claim) as shall be necessary to realize recovery under such
Insurance Policies. Any proceeds disbursed to the related Servicer in respect
of
such Insurance Policies shall, within two Business Days of its receipt, be
deposited in the related Custodial Account, except that any amounts realized
that are to be applied to the repair or restoration of the related Mortgaged
Property as a condition precedent to the presentation of claims on the related
Mortgage Loan to the insurer under any applicable Insurance Policy need not
be
so deposited (or remitted).
Section
3.07 Maintenance
of Insurance Policies.
The
related Servicer shall not take any action that would result in noncoverage
under any applicable Insurance Policy of any loss which, but for the actions
of
such Servicer would have been covered thereunder. The related Servicer shall
use
its best efforts to keep in force and effect (to the extent that the related
Mortgage Loan requires the Mortgagor to maintain such insurance), any applicable
Insurance Policy. The related Servicer shall not cancel or refuse to renew
any
Insurance Policy that is in effect at the date of the initial issuance of the
Mortgage Note and is required to be kept in force hereunder.
Section
3.08 Reserved.
Section
3.09 Realization
Upon Defaulted Mortgage Loans; Determination of Excess Liquidation Proceeds
and
Realized Losses; Repurchases of Certain Mortgage Loans.
(a) The
related Servicer shall use reasonable efforts to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans serviced by such Servicer as come into and continue in default and as
to
which no satisfactory arrangements can be made for collection of delinquent
payments. In connection with such foreclosure or other conversion, the related
Servicer shall follow such practices and procedures as it shall deem necessary
or advisable and as shall be normal and usual in its general mortgage servicing
activities and the requirements of the insurer under any Required Insurance
Policy; provided that the related Servicer shall not be required to expend
its
own funds in connection with any foreclosure or towards the restoration of
any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the related Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through Liquidation Proceeds (respecting which it shall have
priority for purposes of withdrawals from the related Custodial Account). If
a
Mortgage Loan becomes 180 days delinquent and the related Servicer, in its
reasonable good faith judgment, determines that the recovery of principal with
respect to such Mortgage Loan will not materially be in excess of the cost
of
foreclosure or other liquidation of the Mortgage Loan, then the related Servicer
will be deemed to have made a Final Recovery Determination with respect to
such
Mortgage Loan and the related Servicer may charge off such Mortgage Loan at
any
time thereafter. If the related Servicer reasonably believes that Liquidation
Proceeds with respect to any such Mortgage Loan would not be increased as a
result of such foreclosure or other action, such Mortgage Loan will be
charged-off and will become a Liquidated Loan. The related Servicer will give
notice of any such charge-off to the Securities Administrator. The related
Servicer shall be responsible for all other costs and expenses incurred by
it in
any such proceedings; provided that such costs and expenses shall be Servicing
Advances and that it shall be entitled to reimbursement thereof from the
proceeds of liquidation of the related Mortgaged Property, as contemplated
in
Section 3.27. If the related Servicer has knowledge that a Mortgaged
Property that such Servicer is contemplating acquiring in foreclosure or by
deed-in-lieu of foreclosure is located within a one-mile radius of any site
with
environmental or hazardous waste risks known to such Servicer, such Servicer
shall, prior to acquiring the Mortgaged Property, consider such risks and only
take action in accordance with its established environmental review
procedures.
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the related Certificateholders (or
the Trustee’s nominee on behalf of the related Certificateholders). The
Trustee’s name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The related Servicer
shall
ensure that the title to such REO Property references this Agreement and the
Trustee’s capacity hereunder. Pursuant to its efforts to sell such REO Property,
the related Servicer shall either itself or through an agent selected by such
Servicer protect and conserve such REO Property in the same manner and to such
extent as is customary in the locality where such REO Property is located and
may, incident to its conservation and protection of the interests of the related
Certificateholders, rent the same, or any part thereof, as such Servicer deems
to be in the best interest of such Servicer and the related Certificateholders
for the period prior to the sale of such REO Property. The related Servicer
shall prepare for and deliver to the Securities Administrator a statement with
respect to each REO Property that has been rented showing the aggregate rental
income received and all expenses incurred in connection with the management
and
maintenance of such REO Property at such times as is necessary to enable the
Securities Administrator to comply with the reporting requirements of the REMIC
Provisions. The net monthly rental income, if any, from such REO Property shall
be deposited in the related Custodial Account no later than the close of
business on each Determination Date. The related Servicer shall perform the
tax
reporting and withholding related to foreclosures, abandonments and cancellation
of indebtedness income as specified by Sections 6050H, 6050J and 6050P of the
Code by preparing and filing such tax and information returns, as may be
required.
In
the
event that the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the related Servicer shall dispose of such Mortgaged Property prior to three
years after its acquisition by the Trust Fund or, at the expense of the Trust
Fund, request from the Internal Revenue Service more than 60 days prior to
the
day on which such three-year period would otherwise expire, an extension of
the
three-year grace period. The Trustee and the Securities Administrator shall
be
supplied with an Opinion of Counsel (such opinion not to be an expense of the
Trustee, the Securities Administrator or the Trust Fund) to the effect that
the
holding by the Trust Fund of such Mortgaged Property subsequent to such
three-year period will not result in the imposition of taxes on “prohibited
transactions” of REMIC IA or REMIC IIA as defined in section 860F of the
Code or cause REMIC IA or REMIC IIA to fail to qualify as a REMIC at any
time that any Certificates are outstanding, in which case the Trust Fund may
continue to hold such Mortgaged Property (subject to any conditions contained
in
such Opinion of Counsel). Notwithstanding any other provision of this Agreement,
no Mortgaged Property acquired by the Trust Fund shall be rented (or allowed
to
continue to be rented) or otherwise used for the production of income by or
on
behalf of the Trust Fund in such a manner or pursuant to any terms that would
(i) cause such Mortgaged Property to fail to qualify as “foreclosure property”
within the meaning of section 860G(a)(8) of the Code or (ii) subject
REMIC IA or REMIC IIA to the imposition of any federal, state or local
income taxes on the income earned from such Mortgaged Property under section
860G(c) of the Code or otherwise, unless the related Servicer has agreed to
indemnify and hold harmless the Trust Fund with respect to the imposition of
any
such taxes.
The
decision of the related Servicer to foreclose on a defaulted Mortgage Loan
shall
be subject to a determination by such Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The income earned from the management of any Mortgaged Properties acquired
through foreclosure or other judicial proceeding, net of reimbursement to the
related Servicer for expenses incurred (including any property or other taxes)
in connection with such management and net of unreimbursed Servicing Fees,
Advances, Servicing Advances and any management fee paid or to be paid with
respect to the management of such Mortgaged Property, shall be applied to the
payment of principal of, and interest on, the defaulted Mortgage Loans (with
interest accruing as though such Mortgage Loans were still current) and all
such
income shall be deemed, for all purposes in the Agreement, to be payments on
account of principal and interest on the related Mortgage Notes and shall be
deposited into the related Custodial Account. To the extent the income received
during a Prepayment Period is in excess of the amount attributable to amortizing
principal and accrued interest at the related Mortgage Rate on the Mortgage
Loan, such excess shall be considered to be a partial Principal Prepayment
for
all purposes hereof.
The
Liquidation Proceeds from any liquidation of a Mortgage Loan, net of any payment
to the related Servicer as provided above, shall be deposited in the related
Custodial Account on the next succeeding Determination Date following receipt
thereof for distribution on the related Distribution Date, except that any
Excess Liquidation Proceeds shall be retained by the related Servicer as
additional servicing compensation.
The
proceeds of any Liquidated Loan, as well as any recovery resulting from a
partial collection of Liquidation Proceeds or any income from an REO Property,
shall be applied in the following order of priority: first, to reimburse the
related Servicer for any related unreimbursed Servicing Advances and Servicing
Fees, pursuant to Section 3.27 or this Section 3.09; second, to
reimburse the related Servicer for any unreimbursed Advances, pursuant to
Section 3.27 or this Section 3.09; third, to accrued and unpaid
interest (to the extent no Advance has been made for such amount) on the
Mortgage Loan or related REO Property, at the Net Mortgage Rate to the first
day
of the month in which such amounts are required to be distributed; and fourth,
as a recovery of principal of the Mortgage Loan.
(b) On
each
Determination Date, the related Servicer shall determine the respective
aggregate amounts of Excess Liquidation Proceeds and Realized Losses, if any,
with respect to any Mortgage Loan for the related Prepayment Period and report
the same to the Master Servicer pursuant to Section 3.28.
(c) The
related Servicer hereby covenants to the parties hereto that it has no intent
to
foreclose on any Mortgage Loan serviced by such Servicer based on the
delinquency characteristics as of the Closing Date; provided, however, that
the
foregoing does not prevent the related Servicer from initiating foreclosure
proceedings on any date hereafter if the facts and circumstances of such
Mortgage Loans including delinquency characteristics in the related Servicer’s
discretion so warrant such action.
Section
3.10 Servicing
Compensation.
As
compensation for its activities hereunder, the related Servicer shall be
entitled to retain or withdraw from the related Custodial Account out of each
payment of interest on each Mortgage Loan serviced by such Servicer included
in
the Trust Fund an amount equal to the Servicing Fee. In addition, the related
Servicer shall be entitled to recover any unpaid Servicing Fees payable to
it
out of Liquidation Proceeds, Insurance Proceeds or condemnation proceeds related
to the Mortgage Loans to the extent permitted by Section 3.27.
Additional
servicing compensation with respect to Mortgage Loans in the form of any Excess
Liquidation Proceeds, assumption fees, late payment charges, insufficient funds
charges and ancillary income to the extent such fees or charges are received
by
the related Servicer, all income and gain net of any losses realized from
Permitted Investments with respect to funds in or credited to the related
Custodial Account shall be retained by such Servicer to the extent not required
to be deposited in such Custodial Account pursuant to Section 3.27. The
related Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder (including payment of any
premiums for hazard insurance, as required by Section 3.05 and maintenance
of the other forms of insurance coverage required by Section 3.07 and shall
not be entitled to reimbursement therefor except as specifically provided
herein.
Section
3.11 REO
Property.
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
related Mortgage Loan, the deed or certificate of sale shall be issued to the
Trustee, or to its nominee, on behalf of the related Certificateholders. The
related Servicer shall sell any REO Property as expeditiously as possible and
in
accordance with the provisions of this Agreement. Pursuant to its efforts to
sell such REO Property, the related Servicer shall protect and conserve such
REO
Property in the manner and to the extent required herein, in accordance with
the
REMIC Provisions.
(b) The
related Servicer shall deposit all funds collected and received in connection
with the operation of any REO Property into the related Custodial
Account.
(c) The
related Servicer, upon the final disposition of any REO Property, shall be
entitled to reimbursement for any related unreimbursed Advances, unreimbursed
Servicing Advances or Servicing Fees from Liquidation Proceeds received in
connection with the final disposition of such REO Property; provided, that
any
such unreimbursed Advances or Servicing Fees as well as any unpaid Servicing
Fees may be reimbursed or paid, as the case may be, prior to final disposition,
out of any net rental income or other net amounts derived from such REO
Property.
Section
3.12 Liquidation
Reports.
Upon
the
foreclosure of any Mortgaged Property or the acquisition thereof by the Trust
Fund pursuant to a deed-in-lieu of foreclosure, the related Servicer shall
submit a liquidation report to the Trustee containing such information as shall
be mutually acceptable to the Servicer and the Trustee with respect to such
Mortgaged Property.
Section
3.13 Annual
Statement as to Compliance.
(a) The
related Servicer, the Master Servicer and the Securities Administrator shall
deliver or otherwise make available (and shall cause each Servicing Function
Participant engaged by it to deliver) to the Depositor and the Securities
Administrator on or before March 15 of each year, commencing in March 2008,
an
Officer’s Certificate stating, as to the signer thereof, that (A) a review of
such party’s activities during the preceding calendar year or portion thereof
and of such Servicing Function Participant’s performance under this Agreement,
or such other applicable agreement in the case of a Servicing Function
Participant, has been made under such officer’s supervision and (B) to the best
of such officer’s knowledge, based on such review, such party has fulfilled all
its obligations under this Agreement, or such other applicable agreement in
the
case of a Servicing Function Participant (other than the related Servicer,
the
Master Servicer or the Securities Administrator), in all material respects
throughout such year or portion thereof, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof.
(b) (i) For
so long as the Trust Fund is subject to Exchange Act reporting requirements,
failure of the related Servicer to comply timely with this Section 3.13
shall be deemed a Servicer Default as to such Servicer, without any cure period,
and the Master Servicer shall notify the Trustee and the Trustee may, in
addition to whatever rights the Master Servicer or the Trustee, as applicable,
may have under this Agreement and at law or in equity or to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of such Servicer under this Agreement and in and to the related
Mortgage Loans and the proceeds thereof without compensating such Servicer
for
the same. The Master Servicer or the Trustee, as applicable, shall so terminate
the defaulting Servicer by delivery of notice thereof via first class mail,
facsimile or electronic mail. This paragraph shall supersede any other provision
in this Agreement or any other agreement to the contrary.
(ii) After
the
Trust Fund ceases to be subject to Exchange Act reporting requirements, failure
of the related Servicer to comply timely with this Section 3.13 shall be
deemed a Servicer Default as provided for in Section 8.01(a)(viii). The
Master Servicer shall notify the Trustee and the Trustee may, terminate the
defaulting Servicer by delivery of notice thereof via first class mail,
facsimile or electronic mail.
(c) The
Master Servicer shall include all annual statements of compliance received
by it
from the related Servicer and any Servicing Function Participant with its own
annual statement of compliance to be submitted to the Securities Administrator
pursuant to this Section 3.13.
(d) Copies
of
any Master Servicer annual statements of compliance required to be delivered
hereunder shall be provided to any Certificateholder upon request at the Master
Servicer’s expense.
(e) In
the
event the related Servicer, the Master Servicer, the Securities Administrator
or
any other Servicing Function Participant is terminated or resigns pursuant
to
the terms of this Agreement, or any applicable agreement in the case of such
other Servicing Function Participant, as the case may be, such party shall
provide or cause such other Servicing Function Participant to provide an
Officer’s Certificate pursuant to this Section 3.13 with respect to the
period of time it was subject to this Agreement or any other applicable
agreement, as the case may be.
Section
3.14 Assessments
of Compliance and Attestation Reports.
(a) By
March
15 of each year, commencing in March 2008, the related Servicer, the Master
Servicer and the Securities Administrator, each at its own expense and pursuant
to Item 1122(a) of Regulation AB, shall furnish or otherwise make available,
and
shall cause any Servicing Function Participant engaged by it to furnish, which
in each case shall not be an expense of the Trust Fund, to the Securities
Administrator and the Depositor, a report on an assessment of compliance with
the Relevant Servicing Criteria that contains (A) a statement by such party
of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such party used the Relevant Servicing Criteria
to assess compliance with the Relevant Servicing Criteria, (C) such party’s
assessment of compliance with the Relevant Servicing Criteria for the period
consisting of the prior calendar year, including, if there has been any material
instance of noncompliance with the Relevant Servicing Criteria, a discussion
of
each such failure and the nature and status thereof, and (D) a statement that
a
registered public accounting firm has issued an attestation report on such
party’s assessment of compliance with the Relevant Servicing Criteria for the
period consisting of the prior calendar year.
(b) No
later
than the end of each calendar year, the related Servicer and the Master Servicer
shall forward to the Securities Administrator and the Depositor, the name of
each Servicing Function Participant engaged
by it and
what
Relevant Servicing Criteria will be addressed in the report on assessment of
compliance prepared by such Servicing Function Participant; provided, however,
that the Master Servicer need not provide such information to the Securities
Administrator so long as the Master Servicer and the Securities Administrator
are the same entity. When the related Servicer and the Master Servicer (or
any
Servicing Function Participant engaged by them) submit their assessments to
the
Securities Administrator, such parties will also at such time include the
assessment (and attestation pursuant to paragraph (c) below) of each Servicing
Function Participant engaged by it.
Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the related
Servicer, the Master Servicer, the Securities Administrator and any Servicing
Function Participant engaged by such parties as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by each such
party, and (ii) the Securities Administrator shall confirm that the assessments,
taken as a whole, address all of the Servicing Criteria and taken individually
address the Relevant Servicing Criteria for each party as set forth on Exhibit
L
and on any similar exhibit set forth in the Servicing Agreement in respect
of
Xxxxx Fargo, and notify the Depositor of any exceptions.
In
the
event a Servicing Function Participant is terminated, assigns its rights and
obligations under, or resigns pursuant to the terms of this Agreement, or any
other applicable agreement, as the case may be, such party shall provide, or
cause a Servicing Function Participant engaged by it to provide, a report on
assessment of compliance pursuant to this Section 3.14 with respect to the
period of time it was subject to this Agreement or any other applicable
agreement, as the case may be.
The
Master Servicer shall include such annual report on assessment of compliance
with its own assessment of compliance to be submitted to the Securities
Administrator pursuant to this Section.
(c) By
March
15 of each year, commencing in March 2008, the related Servicer, the Master
Servicer and the Securities Administrator, each at its own expense, shall cause,
and shall cause any Servicing Function Participant engaged by such party to
cause, which in each case shall not be an expense of the trust, a registered
public accounting firm (which may also render other services to such Servicing
Function Participants) and that is a member of the American Institute of
Certified Public Accountants to furnish a report to the Master Servicer and
Securities Administrator to the effect that (i) it has obtained a representation
regarding certain matters from the management of such party, which includes
an
assertion that such party has complied with the Relevant Servicing Criteria,
and
(ii) on the basis of an examination conducted by such firm in accordance with
standards for attestation engagements issued or adopted by the PCAOB, it is
expressing an opinion as to whether such party’s compliance with the Relevant
Servicing Criteria was fairly stated in all material respects, or it cannot
express an overall opinion regarding such party’s assessment of compliance with
the Relevant Servicing Criteria. In the event that an overall opinion cannot
be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
Promptly
after receipt of such report from a Servicing Function Participant, the
Securities Administrator shall confirm that each assessment submitted pursuant
to paragraph (a) above is coupled with an attestation meeting the requirements
of this Section and notify the Depositor of any exceptions.
The
Master Servicer shall include each such attestation with its own attestation
to
be submitted to the Securities Administrator pursuant to this
Section.
In
the
event any Servicing Function Participant is terminated, assigns its rights
and
duties under, or resigns pursuant to the terms of this Agreement, or any other
applicable agreement, as the case may be, such party shall cause a registered
public accounting firm to provide an attestation pursuant to this
Section 3.14 with respect to the period of time it was subject to this
Agreement or any applicable subservicing agreement, as the case may
be.
(d) (i) For
so long as the Trust Fund is subject to Exchange Act reporting requirements,
failure of the related Servicer to comply timely with this Section 3.14
shall be deemed a Servicer Default as to such Servicer, automatically, without
notice and without any cure period, and the Master Servicer shall notify the
Trustee and the Trustee may, in addition to whatever rights the Master Servicer
or the Trustee, as applicable, may have under this Agreement and at law or
in
equity or to damages, including injunctive relief and specific performance,
terminate all the rights and obligations of such Servicer under this Agreement
and in and to the related Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same. The Trustee shall so terminate the
defaulting Servicer by delivery of notice thereof via first class mail,
facsimile or electronic mail. This paragraph shall supersede any other provision
in this Agreement or any other agreement to the contrary.
(ii) After
the
Trust Fund ceases to be subject to Exchange Act reporting requirements, failure
of the related Servicer to comply timely with this Section 3.14 shall be
deemed a Servicer Default as provided for in Section 8.01(a)(ix). The
Trustee may terminate the defaulting Servicer by delivery of notice thereof
via
first class mail, facsimile or electronic mail.
Section
3.15 Books
and Records.
The
related Servicer shall be responsible for maintaining, and shall maintain,
a
complete set of books and records for the Mortgage Loans serviced by such
Servicer which shall be appropriately identified in such Servicer’s computer
system to clearly reflect the ownership of the Mortgage Loans by the Trust.
In
particular, the related Servicer shall maintain in its possession, available
for
inspection by the Trustee and the Master Servicer and shall deliver to the
Trustee or the Master Servicer upon reasonable prior request and during normal
business hours, evidence of compliance with all federal, state and local laws,
rules and regulations. To the extent that original documents are not required
for purposes of realization of Liquidation Proceeds or Insurance Proceeds,
documents maintained by the related Servicer may be in the form of microfilm
or
microfiche or such other reliable means of recreating original documents,
including, but not limited to, optical imagery techniques so long as the related
Servicer complies with the requirements of Accepted Servicing
Practices.
The
related Servicer shall maintain with respect to each Mortgage Loan serviced
by
such Servicer and shall upon reasonable prior request and during normal business
hours make available for inspection by the Trustee and the Master Servicer
the
related servicing file during the time such Mortgage Loan is subject to this
Agreement and thereafter in accordance with applicable law.
Section
3.16 The
Trustee.
The
Trustee shall furnish GMACM and Xxxxx Fargo with any powers of attorney and
other documents prepared and submitted by the GMACM or Xxxxx Fargo to the
Trustee in a form as mutually agreed upon and necessary or appropriate to enable
each of GMACM and Xxxxx Fargo to service and administer the related Mortgage
Loans and REO Properties.
The
Trustee shall provide access to the records and documentation in possession
of
the Trustee regarding the related Mortgage Loans and REO Property and the
servicing thereof to the Certificateholders, the FDIC, and the supervisory
agents and examiners of the FDIC, such access being afforded only upon
reasonable prior written request and during normal business hours at the office
of the Trustee; provided, however, that, unless otherwise required by law,
the
Trustee shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee shall allow representatives of the above entities
to photocopy any of the records and documentation and shall provide equipment
for that purpose at a charge that covers the Trustee’s actual
costs.
The
Trustee shall execute and deliver as directed in writing by GMACM or Xxxxx
Fargo, as applicable, any court pleadings, requests for trustee’s sale or other
documents necessary or desirable to (i) the foreclosure or trustee’s sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note; (iii) obtain a deficiency
judgment against the Mortgagor; or (iv) enforce any other rights or remedies
provided by the Mortgage Note or otherwise available at law or
equity.
Section
3.17 REMIC-Related
Covenants.
For
as
long as each REMIC shall exist, the Trustee and the Securities Administrator
shall act in accordance herewith to treat each REMIC as a REMIC, and the Trustee
and the Securities Administrator shall comply with any directions of the
Sponsor, GMACM, Xxxxx Fargo or the Master Servicer with respect to such
treatment. In particular, the Trustee shall not (a) knowingly sell or permit
the
sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a repurchase of the
Mortgage Loans pursuant to this Agreement or the Trustee has received a REMIC
Opinion prepared at the expense of the Trust Fund; and (b) other than with
respect to a substitution pursuant to the Mortgage Loan Purchase Agreement
or
Section 2.04 of this Agreement, as applicable, accept any contribution to
any REMIC after the Startup Day without receipt of a REMIC Opinion.
Section
3.18 Annual
Xxxxxxxx-Xxxxx Certification; Additional Information.
(a) The
related Servicer, the Master Servicer and the Securities Administrator shall
and
shall cause any Servicing Function Participant engaged by such party to, provide
to the Certifying Person, by March 15 of each year in which the Trust Fund
is
subject to the reporting requirements of the Exchange Act and otherwise within
a
reasonable period of time upon request, a certification (each, a “Back-Up
Certification”),
in
the form attached hereto as Exhibit
M,
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall prepare a Xxxxxxxx-Xxxxx Certification and
sign
the same on behalf of the Trust Fund serving as the “Certifying Person”. Such
officer of the Certifying Person can be contacted by e-mail at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
or
by
facsimile at (000) 000-0000. In the event the related Servicer, the Master
Servicer or the Securities Administrator, or any Servicing Function Participant
engaged by such party, is terminated or resigns pursuant to the terms of this
Agreement, or any other applicable agreement, as the case may be, such party
shall provide a Back-Up Certification to the Certifying Person pursuant to
this
Section 3.18 with respect to the period of time it was subject to this
Agreement or any other applicable agreement, as the case may be.
Notwithstanding
the foregoing, (i) the Master Servicer and the Securities Administrator shall
not be required to deliver a Back-Up Certification to each other if each is
the
same Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to execute any Xxxxxxxx-Xxxxx Certification
in
the event that it does not receive a Back-Up Certification from any party
required to deliver such Back-Up Certification pursuant to this Section or
the Custodial Agreement; provided, however, in the event the Master Servicer
shall not be required to execute a Xxxxxxxx-Xxxxx Certification pursuant to
clause (ii), the Master Servicer shall prepare such Xxxxxxxx-Xxxxx Certification
and deliver it to the Depositor for execution.
(b) The
related Servicer shall provide (or shall cause each Subservicer or Subcontractor
to provide) to the Master Servicer, the Securities Administrator and the
Depositor prompt notice and a description of the occurrence of any of the
following:
(i) any
Servicer Default with respect to such Servicer under the terms of this
Agreement, any merger, consolidation or sale of substantially all of the assets
of such Servicer, such Servicer’s engagement of any Subservicer to perform or
assist in the performance of any of such Servicer’s obligations under this
Agreement, any material litigation or governmental proceedings involving such
Servicer (or any of its Subservicers or Subcontractors, as applicable), and
any
affiliation or other significant relationship between such Servicer (or any
of
its Subservicers or Subcontractors, as applicable) and other transaction
parties.
(ii) As
a
condition to the succession to the related Servicer or any Subservicer as
servicer or subservicer under this Agreement by any Person (i) into which such
Servicer or such Subservicer may be merged or consolidated, or (ii) which may
be
appointed as a successor to such Servicer or any Subservicer, such Servicer
shall provide to the Sponsor, Depositor, Master Servicer and Securities
Administrator at least fifteen (15) calendar days prior to the effective date
of
such succession or appointment, (x) written notice and all information
reasonably requested to the Sponsor, Depositor, Master Servicer and Securities
Administrator of such succession or appointment and (y) in writing and in form
and substance reasonably satisfactory to the Sponsor, Depositor, Master Servicer
and Securities Administrator in order to comply with the reporting obligations
under Item 6.02 of Form 8-K.
(iii) If
the
related Servicer or any Servicing Function Participant engaged by such Servicer
has knowledge of the occurrence of any of the events described in this clause
(iii), then no later than ten days prior to the deadline for the filing of
any
Distribution Report on Form 10-D in respect of any Trust Fund that includes
any
of the Mortgage Loans serviced by such Servicer or any Subservicer, such
Servicer shall provide (or cause such Subservicer to provide) to the Master
Servicer and Securities Administrator notice of the occurrence of any of the
following events along with all information, data, and materials related thereto
as may be required to be included in the related Distribution Report on Form
10-D (as specified in the provisions of Regulation AB referenced
below):
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or transaction covenants
of
such Servicer (Item 1121(a)(12) of Regulation AB); and
(C) information
regarding any material pool asset changes (such as, additions, substitutions
or
repurchases).
(c) The
related Servicer shall provide to the Master Servicer and the Securities
Administrator such additional information as the Master Servicer may reasonably
request, including evidence of the authorization of the person signing any
certification or statement, financial information and reports and of the
fidelity bond and errors and omissions insurance policy required to be
maintained by such Servicer pursuant to this Agreement, and such other
information related to such Servicer or any Servicing Function Participant
engaged by such Servicer or its performance hereunder or other applicable
agreement.
Section
3.19 Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
the related Servicer of a notification that payment in full has been escrowed
in
a manner customary for such purposes for payment to Certificateholders on the
next Distribution Date, such Servicer will (or if such Servicer does not, the
Master Servicer may) promptly furnish to the Trustee and the Custodian, on
behalf of the Trustee, two copies of a request for release substantially in
the
form attached to the Custodial Agreement signed by an Authorized Servicer
Representative or in a mutually agreeable electronic format which will, in
lieu
of a signature on its face, originate from an Authorized Servicer Representative
(which certification shall include a statement to the effect that all amounts
received in connection with such payment that are required to be deposited
in
the related Custodial Account pursuant to Article V have been or will be so
deposited) and shall request that the Custodian, on behalf of the Trustee,
deliver to the related Servicer the related Mortgage File. Within five (5)
Business Days of receipt of such certification and request, the Custodian,
on
behalf of the Trustee, shall release the related Mortgage File to the related
Servicer and the Trustee and the Custodian shall have no further responsibility
with regard to such Mortgage File. Upon any such payment in full, the related
Servicer is authorized, to give, as agent for the Trustee, as the mortgagee
under the Mortgage that secured the related Mortgage Loan, an instrument of
satisfaction (or assignment of mortgage without recourse) regarding the
Mortgaged Property subject to the Mortgage, which instrument of satisfaction
or
assignment, as the case may be, shall be delivered to the Person or Persons
entitled thereto against receipt therefor of such payment, it being understood
and agreed that no expenses incurred in connection with such instrument of
satisfaction or assignment, as the case may be, shall be chargeable to the
related Custodial Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with this Agreement, the Trustee shall execute such documents
as shall be prepared and furnished to the Trustee by the related Servicer (in
form reasonably acceptable to the Trustee) and as are necessary to the
prosecution of any such proceedings. The Custodian, on behalf of the Trustee,
shall, upon the written request of the related Servicer, and delivery to the
Custodian, on behalf of the Trustee, of two copies of a request for release
signed by an Authorized Servicer Representative substantially in the form
attached to the Custodial Agreement (or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from an
Authorized Servicer Representative), release the related Mortgage File held
in
its possession or control to the related Servicer. Such request for release
shall obligate the related Servicer to return the Mortgage File to the Custodian
on behalf of the Trustee, when the need therefor by such Person no longer exists
unless the Mortgage Loan shall be liquidated, in which case, upon receipt of
a
certificate of an Authorized Servicer Representative similar to that hereinabove
specified, the Mortgage File shall be released by the Custodian, on behalf
of
the Trustee, to the related Servicer.
Section
3.20 Documents,
Records and Funds in Possession of the Servicers to be held for
Trustee.
The
related Servicer (to the extent required by this Agreement or the Servicing
Agreement, as applicable) shall transmit to the Trustee or the Custodian such
documents and instruments coming into the possession of such Servicer from
time
to time as are required by the terms hereof to be delivered to the Trustee
or
the Custodian. Any funds received by the related Servicer in respect of any
Mortgage Loan serviced by such Servicer or which otherwise are collected by
such
Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the right of such Servicer to retain its Servicing
Fee and other amounts as provided in this Agreement or the related Servicing
Agreement, as applicable.
Section
3.21 Possession
of Certain Insurance Policies and Documents.
The
related Servicer shall retain possession and custody of the originals (to the
extent available) of any Insurance Policies, or certificate of insurance if
applicable, and any certificates of renewal as to the foregoing as may be issued
from time to time that comes into the possession of such Servicer, as
contemplated by this Agreement. Until all amounts distributable in respect
of
the Certificates have been distributed in full, the Trustee (or the Custodian,
as directed by the Trustee) shall retain possession and custody of each Mortgage
File in accordance with and subject to the terms and conditions of this
Agreement.
Section
3.22 [Reserved].
Section
3.23 [Reserved].
Section
3.24 Optional
Purchase of Certain Mortgage Loans.
With
respect to any Mortgage Loan which is delinquent in payment by ninety-one (91)
days or more or is an REO Property, the Sponsor shall have the right to purchase
such Mortgage Loan or REO Property from the Trust Fund at a price equal to
the
Purchase Price. The Purchase Price shall be remitted to the related Servicer
for
deposit in the related Custodial Account and remitted by the Servicer to the
Securities Administrator on the Servicer Remittance Date in the month
immediately following the month in which the Purchase Price was deposited in
the
related Custodial Account.
In
addition, the Sponsor shall, at its option, purchase any Mortgage Loan from
the
Trust Fund if the first Due Date for such Mortgage Loan is subsequent to the
Cut-off Date and the first Monthly Payment is not made within thirty (30) days
of such Due Date. Such purchase shall be made at a price equal to the Purchase
Price.
If
at any
time the Sponsor remits to the related Servicer a payment for deposit in the
related Custodial Account covering the amount of the Purchase Price for such
a
Mortgage Loan and the related Servicer delivers an Officer’s Certificate to the
Trustee (which shall be delivered no later than two (2) Business Days following
such deposit) certifying that the Purchase Price has been deposited in the
related Custodial Account, the Trustee shall execute the assignment of such
Mortgage Loan at the request of the Sponsor without recourse to the Sponsor
which shall succeed to all the Trustee’s, right, title and interest in and to
such Mortgage Loan, and all security and documents relative thereto. Such
assignment shall be an assignment outright and not for security. The Sponsor
will thereupon own such Mortgage, and all such security and documents, free
of
any further obligation to the Trustee or the related Certificateholders with
respect thereto. The Sponsor shall be responsible for any transfer costs
incurred with respect to a Mortgage Loan purchased pursuant to this
Section 3.24.
If
the
Sponsor is required to repurchase a Mortgage Loan pursuant to this
Section 3.24, the related Servicer shall continue to service such Mortgage
Loan unless the Sponsor shall repurchase the servicing rights thereon on terms
mutually agreed to by the Sponsor and the related Servicer. Notwithstanding
the
foregoing, the Master Servicer shall have no obligation to master service any
Mortgage Loan that has been so repurchased.
Section
3.25 [Reserved].
Section
3.26 Collection
of Mortgage Loan Payments; Custodial Accounts.
(a) The
related Servicer shall make reasonable efforts in accordance with Accepted
Servicing Practices to collect all payments called for under the terms and
provisions of the related Mortgage Loans to the extent such procedures shall
be
consistent with this Agreement and the terms and provisions of any related
Required Insurance Policy. Consistent with the foregoing, the related Servicer
may in its discretion (i) waive any late payment charge and (ii) extend the
due
dates for payments due on a Mortgage Note for a Mortgage Loan serviced by such
Servicer for a period not greater than 180 days; provided, however no such
extension shall be materially adverse to the Certificateholders. In the event
of
any such arrangement, the related Servicer shall make Advances on the Mortgage
Loan during the scheduled period in accordance with the amortization schedule
of
such Mortgage Loan without modification thereof by reason of such arrangements,
and shall be entitled to reimbursement therefor in accordance with
Section 5.01. The related Servicer shall not be required to institute or
join in litigation with respect to collection of any payment (whether under
a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which such payment is required is prohibited by applicable law. In addition,
if
(x) a Mortgage Loan is in default or default is imminent or (y) the related
Servicer delivers to the Trustee and the Securities Administrator a REMIC
Opinion, the related Servicer may, (A) amend the related Mortgage Note to reduce
the Mortgage Rate applicable thereto, and (B) amend any Mortgage Note for a
Mortgage Loan to extend the maturity thereof.
(b) The
related Servicer shall establish and maintain a segregated Custodial Account
(which shall at all times be an Eligible Account) with a depository institution
and shall be in the name of such Servicer in trust for registered holders of
Nomura Home Equity Loan, Inc., Asset-Backed Certificates, Series 2007-1. On
behalf of the Trust Fund, the related Servicer shall deposit or cause to be
deposited in the clearing account in which it customarily deposits payments
and
collection 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
such Servicer’s receipt thereof, and shall thereafter deposit in the related
Custodial Account, in no event more than two Business Days after the related
Servicer’s receipt thereof, except as otherwise specifically provided herein,
the following payments and collections remitted by Subservicers or received
by
it in respect of the Mortgage Loans subsequent to the Cut-off Date (other than
in respect of principal and interest due on the related Mortgage Loans on or
before the Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all
payments on account of principal, including Principal Prepayments and Subsequent
Recoveries, on the related Mortgage Loans;
(ii) all
payments on account of interest on the related Mortgage Loans net of the
Servicing Fee permitted under Section 3.10;
(iii) all
Liquidation Proceeds, Insurance Proceeds and condemnation proceeds with respect
to the related Mortgage Loans, other than proceeds to be applied to the
restoration or repair of the related Mortgaged Properties or released to the
Mortgagor in accordance with the related Servicer’s normal servicing
procedures;
(iv) any
amount required to be deposited by the related Servicer pursuant to
Section 3.26(c) in connection with any losses on Permitted
Investments;
(v) any
amounts required to be deposited by the related Servicer pursuant to
Section 3.05;
(vi) any
amounts paid by an Advance Financing Person in respect of Advances or Servicing
Advances;
(vii) any
Prepayment Charges collected by the related Servicer in connection with the
Principal Prepayment of any of the related Mortgage Loans and any Servicer
Prepayment Charge Payment Amounts;
(viii) the
Purchase Price with respect to any related Mortgage Loans purchased by the
Sponsor pursuant to Section 2.02 or 2.03, any amounts which are to be
treated pursuant to Section 2.04 of this Agreement as the payment of such a
Purchase Price and the Purchase Price with respect to any related Mortgage
Loans
purchased by the Sponsor pursuant to Section 3.24; and
(ix) any
other
amounts required to be deposited hereunder.
The
foregoing requirements for deposit by the related Servicer into the related
Custodial Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the nature of
late
payment charges or assumption fees, if collected, need not be deposited by
the
related Servicer. In the event that the related Servicer shall deposit any
amount not required to be deposited and not otherwise subject to withdrawal
pursuant to Section 3.27, it may at any time withdraw or direct the
institution maintaining the related Custodial Account, to withdraw such amount
from the related Custodial Account, any provision herein to the contrary
notwithstanding. Such withdrawal or direction may be accomplished by delivering
written notice thereof to the institution maintaining the related Custodial
Account, that describes the amounts deposited in error in such Custodial
Account. The related Servicer shall maintain adequate records with respect
to
all withdrawals made pursuant to this Section. All funds deposited in a
Custodial Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.27.
(c) The
institution that maintains any Custodial Account, or other authorized entity
shall invest the funds in such Custodial Account, in the manner directed by
the
related Servicer, in Permitted Investments which shall mature not later than
the
next succeeding Remittance Date and shall not be sold or disposed of prior
to
its maturity. All such Permitted Investments shall be made in the name of the
Trustee, for the benefit of the Certificateholders. All income and gain net
of
any losses realized from any such investment shall be for the benefit of the
related Servicer as servicing compensation and shall be remitted to it monthly
as provided herein. The amount of any losses incurred in a Custodial Account
in
respect of any such investments shall be deposited by the related Servicer
into
such Custodial Account immediately as realized, out of its own
funds.
(d) The
related Servicer shall give at least thirty (30) days’ advance notice to the
Trustee, the Securities Administrator, the Master Servicer, the Sponsor, each
Rating Agency and the Depositor of any proposed change of location of the
related Custodial Account prior to any change thereof.
Section
3.27 Permitted
Withdrawals From the Custodial Accounts.
(a) The
related Servicer may from time to time make withdrawals from the related
Custodial Account for the following purposes:
(i) to
pay
itself (to the extent not previously paid to or withheld by the related
Servicer), as servicing compensation in accordance with Section 3.10, that
portion of any payment of interest that equals the Servicing Fee for the period
with respect to which such interest payment was made, and, as additional
servicing compensation, those other amounts set forth in
Section 3.10;
(ii) to
reimburse the related Servicer or an Advance Financing Person for (A) any
unreimbursed Advances to the extent of amounts received which represent late
recoveries of payments of principal and/or interest (net of the related
Servicing Fees), Liquidation Proceeds and Insurance Proceeds on the related
Mortgage Loans with respect to which such Advances were made in accordance
with
the provisions of Section 5.01; and (B) any unreimbursed Advances with
respect to the final liquidation of a related Mortgage Loan that are
Nonrecoverable Advances, but only to the extent that late recoveries of payments
of principal and/or interest, Liquidation Proceeds and Insurance Proceeds
received with respect to such Mortgage Loan are insufficient to reimburse the
related Servicer or an Advance Financing Person for such unreimbursed Advances
or (C) subject to Section 3.27(b), any unreimbursed Advances to the extent
of Amounts Held For Future Distribution funds held in the related Custodial
Account relating to the Mortgage Loans that were not included in the Available
Distribution Amount for the preceding Distribution Date;
(iii) to
reimburse itself or an Advance Financing Person for any Nonrecoverable
Advances;
(iv) to
reimburse itself from Insurance Proceeds for Insured Expenses covered by the
related Insurance Policy;
(v) to
pay
itself any unpaid Servicing Fees and to reimburse itself or any Advance
Financing Person for any unreimbursed Servicing Advances, provided, however,
that the related Servicer’s or such Advance Financing Person’s right to
reimbursement for Servicing Advances pursuant to this subclause (v) with respect
to any Mortgage Loan shall be limited to amounts received on particular Mortgage
Loan(s) (including, for this purpose, late recoveries of payments of principal
and/or interest, Liquidation Proceeds, Insurance Proceeds, condemnation proceeds
and purchase and repurchase proceeds) that represent late recoveries of the
payments for which such Servicing Advances were made;
(vi) to
pay to
the Sponsor or the Depositor with respect to each related Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02, 2.03 or 3.24, all amounts received thereon and not taken into
account in determining the related Stated Principal Balance of such repurchased
Mortgage Loan;
(vii) to
pay
any expenses reimbursable pursuant to Section 7.04;
(viii) to
withdraw any amount deposited in the related Custodial Account and not required
to be deposited therein;
(ix) to
clear
and terminate the related Custodial Account upon termination of this Agreement
pursuant to Section 10.01 hereof; and
(x) to
pay
the fee payable to any provider of lender-paid mortgage insurance, if
applicable.
In
addition, no later than noon Eastern time on the Remittance Date, the related
Servicer shall withdraw from the related Custodial Account maintained by such
Servicer and remit to the Securities Administrator (a) all amounts deposited
in
such Custodial Account as of the close of business on the last day of the
related Due Period (net of charges against or withdrawals from such Custodial
Account pursuant to this Section 3.27(a)), plus (b) all Advances, if any,
which the related Servicer is obligated to make pursuant to Section 5.01,
minus (c) any amounts attributable to Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds or condemnation proceeds received after the
applicable Prepayment Period, which amounts shall be remitted on the following
Remittance Date, together with any Compensating Interest required to be
deposited in such Custodial Account in connection with such Principal Prepayment
in accordance with Section 5.02, and minus (d) any amounts attributable to
Scheduled Payments collected but due on a Due Date or Due Dates subsequent
to
the first day of the month in which such Remittance Date occurs, which amounts
shall be remitted on the Remittance Date next succeeding the Due Date related
to
such Scheduled Payment.
With
respect to any remittance received by the Securities Administrator after the
Business Day on which such payment was due, the Securities Administrator shall
send written notice thereof to the related Servicer. The related Servicer shall
pay to the Securities Administrator interest on any such late payment by such
Servicer at an annual rate equal to Prime Rate (as defined in The Wall Street
Journal) plus one percentage point, but in no event greater than the maximum
amount permitted by applicable law. Such interest shall be paid by the related
Servicer to the Securities Administrator on the date such late payment is made
and shall cover the period commencing with the day following the Business Day
on
which such payment was due and ending with the Business Day on which such
payment is made, both inclusive. The payment by the related Servicer of any
such
interest, or the failure of the Securities Administrator to notify the related
Servicer of such interest, shall not be deemed an extension of time for payment
or a waiver of any Servicer Default by the related Servicer.
The
related Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of justifying any withdrawal from the
related Custodial Account pursuant to subclauses (i), (ii), (iv), (v) and (vi)
above. Prior to making any withdrawal from the related Custodial Account
pursuant to subclause (iii), the related Servicer shall deliver to the Master
Servicer an Officer’s Certificate of an Authorized Servicer Representative
indicating the amount of any previous Advance or Servicing Advance determined
by
such Servicer to be a Nonrecoverable Advance and identifying the related
Mortgage Loan(s), and their respective portions of such Nonrecoverable
Advance.
(b) Notwithstanding
the foregoing, any Amounts Held For Future Distribution withdrawn by the related
Servicer as permitted in Section 3.27(a)(ii) in reimbursement of Advances
previously made by such Servicer shall be appropriately reflected in such
Servicer’s records and replaced by such Servicer by deposit in the related
Custodial Account, no later than the close of business on any future Remittance
Date on which the funds on deposit in the related Custodial Account shall be
less than the amount required to be remitted to the Trust Fund on such
Remittance Date; provided, however that if the rating of such Servicer
(including any Successor Servicer) is less than “BBB”, such Servicer shall be
required to replace such funds by deposit to the Distribution Account, no later
than the close of business on the Remittance Date immediately following the
Due
Period or Prepayment Period for which such amounts relate. The amount at any
time credited to the related Custodial Account may be invested by such Servicer
in Permitted Investments.
Section
3.28 Reports
to Master Servicer.
Not
later
than the tenth (10th) calendar day of each month (or if such tenth calendar
day
is not a Business Day, the immediately succeeding Business Day), the related
Servicer shall furnish to the Master Servicer (i) (a) monthly loan data in
a
mutually agreed-upon format containing all of the information set forth in
Exhibit X-1, (b) default loan data in the format set forth in Exhibit X-2 hereto
(or in such other format mutually agreed-upon between such Servicer and the
Master Servicer) and (c) information regarding realized losses and gains in
the
format set forth in Exhibit X-3 hereto (or in such other format mutually agreed
between such Servicer and the Master Servicer), in each case relating to the
period ending on the last day of the preceding calendar month, (ii) all such
information required pursuant to clause (i)(a) above on a magnetic tape,
electronic mail, or other similar media reasonably acceptable to the Master
Servicer and (iii) all supporting documentation with respect to the information
required pursuant to clause (i)(c) above.
Not
later
than three (3) Business Days after the Determination Date of each calendar
month
and in any event not later than the 18th
of each
month, GMACM shall furnish to the Master Servicer a monthly report containing
such information regarding prepayments of Mortgage Loans during the applicable
Prepayment Period in a format as mutually agreed to between GMACM and the Master
Servicer.
Section
3.29 Collection
of Taxes; Assessments and Similar Items; Escrow Accounts.
To
the
extent required by the Mortgage Note related to a Mortgage Loan, the related
Servicer shall establish and maintain one or more accounts (each, an “Escrow
Account”) and deposit, promptly upon receipt, and retain therein all collections
from the Mortgagors (or advances by such Servicer) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account
of
the Mortgagors. Nothing herein shall require the related Servicer to compel
a
Mortgagor to establish an Escrow Account in violation of applicable
law.
Withdrawals
of amounts so collected from the Escrow Accounts may be made only to effect
timely payment of taxes, assessments, hazard insurance premiums, condominium
or
PUD association dues, or comparable items, to reimburse the related Servicer
out
of related collections for any payments made with respect to each Mortgage
Loan
pursuant to Section 3.01 (with respect to taxes and assessments and
insurance premiums) and Section 3.05 (with respect to hazard insurance), to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required by law or the terms of the related Mortgage or Mortgage
Note, to such Mortgagors on balances in the Escrow Account, to remove amounts
deposited in error or to clear and terminate the Escrow Account at the
termination of this Agreement in accordance with Section 10.01 thereof. The
Escrow Account shall not be a part of the Trust Fund.
Section
3.30 Adjustments
to Mortgage Rate and Scheduled Payment.
On
each
applicable Adjustment Date, the Mortgage Rate with respect to each Mortgage
Loan
shall be adjusted, in compliance with the requirements of the related Mortgage
and Mortgage Note, to equal the sum of the related Index plus the Gross Margin
(rounded in accordance with the related Mortgage Note) subject to the applicable
Periodic Rate Cap, Maximum Mortgage Interest Rate and Minimum Mortgage Interest
Rate, as set forth in the Mortgage Note. The related Servicer shall execute
and
deliver the notices required by each Mortgage and Mortgage Note, applicable
laws
and regulations regarding interest rate adjustments. The related Servicer shall
also provide timely notification to the Master Servicer of all applicable data
and information regarding such interest rate adjustments and such Servicer’s
methods of implementing such interest rate adjustments. Upon the discovery
by a
Servicer or the Master Servicer that such Servicer has failed to adjust a
Mortgage Rate or a Scheduled Payment pursuant to the terms of the related
Mortgage Note and Mortgage, such Servicer shall immediately deposit in the
related Custodial Account, as applicable from its own funds the amount of any
interest loss caused thereby without reimbursement therefor.
Section
3.31 Distribution
Account.
(a) The
Securities Administrator shall establish and maintain in the name of the
Trustee, for the benefit of the Certificateholders a Distribution Account as
a
segregated non-interest bearing trust account or accounts. The Distribution
Account will be subdivided into two sub-accounts for the benefit of the Holders
of the Group I Certificates and the Holders of the Group II Certificates. The
Securities Administrator will deposit in the related sub-account of the
Distribution Account as identified by the Securities Administrator and as
received by the Securities Administrator, the following amounts:
(i) All
payments and recoveries in respect of principal on the related Mortgage Loans,
including, without limitation, Principal Prepayments, Subsequent Recoveries,
Liquidation Proceeds, Insurance Proceeds, condemnation proceeds and all payments
and recoveries in respect of interest on the related Mortgage Loans withdrawn
by
the Servicers from the related Custodial Account and remitted by Servicers
to
the Securities Administrator;
(ii) Any
Advance and any Compensating Interest Payments;
(iii) Any
Prepayment Charges collected by the Servicers in connection with the Principal
Prepayment of any of the related Mortgage Loans (including any Servicer
Prepayment Charge Payment Amounts);
(iv) Any
Insurance Proceeds or Liquidation Proceeds received by or on behalf of the
Securities Administrator or which were not deposited in the related Custodial
Account;
(v) The
Purchase Price with respect to any related Mortgage Loans purchased by the
Sponsor or Section 2.02 or 2.03, any amounts which are to be treated
pursuant to Section 2.04 of this Agreement as the payment of such a
Purchase Price, the Purchase Price with respect to any related Mortgage Loans
purchased by the Depositor pursuant to Section 3.24, and all proceeds of
any related Mortgage Loans or property acquired with respect thereto repurchased
by the Master Servicer pursuant to Section 10.01;
(vi) Any
amounts required to be deposited with respect to losses on investments of
deposits in an Account; and
(vii) Any
other
amounts received by or on behalf of the Securities Administrator and required
to
be deposited in the related sub-account of the Distribution Account pursuant
to
this Agreement.
(b) All
amounts deposited to the Distribution Account shall be held by the Securities
Administrator in the name of the Trustee in trust for the benefit of the related
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Distribution Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption,
tax service, statement account or payoff, substitution, satisfaction, release
and other like fees and charges, need not be credited by the Securities
Administrator to the Distribution Accounts.
(c) The
amount at any time credited to the Distribution Account may be invested by
the
Securities Administrator in Permitted Investments that mature no later than
the
Business Day prior to the next succeeding Distribution Date as directed by
the
Master Servicer, unless the investment is managed by the Securities
Administrator or an affiliate of the Securities Administrator, in which case
such Permitted Investments may mature on the Distribution Date. All such
investment income shall be for the benefit of the Master Servicer, and any
losses incurred shall be deposited by the Master Servicer in the Distribution
Account immediately as realized.
Section
3.32 Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Securities Administrator will from time to time make or cause to be made such
withdrawals or transfers from the sub-accounts of the Distribution Account
pursuant to this Agreement for the following purposes:
(i) to
pay to
the Trustee any expenses recoverable by the Trustee pursuant to this
Agreement.
(ii) to
reimburse the related Servicer (or any successor thereto) for any Advance or
Servicing Advance of its own funds, the right of the related Servicer (or any
successor thereto) to reimbursement pursuant to this subclause (ii) being
limited to amounts received on a particular Mortgage Loan (including, for this
purpose, the Purchase Price therefor, Insurance Proceeds, Liquidation Proceeds
and condemnation proceeds) which represent late payments or recoveries of the
principal of or interest on such Mortgage Loan respecting which such Advance
or
Servicing Advance was made;
(iii) to
reimburse the Master Servicer or the related Servicer (or any successor thereto)
from Insurance Proceeds or Liquidation Proceeds relating to a particular
Mortgage Loan for amounts expended by the related Servicer (or any successor
thereto) in good faith in connection with the restoration of the related
Mortgaged Property which was damaged by an uninsured cause or in connection
with
the liquidation of such Mortgage Loan;
(iv) to
reimburse the related Servicer (or any successor thereto) from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses incurred
with respect to such Mortgage Loan and to reimburse the related Servicer (or
any
successor thereto) from Liquidation Proceeds from a particular Mortgage Loan
for
Liquidation Expenses incurred with respect to such Mortgage Loan;
(v) to
reimburse the related Servicer (or any successor thereto) for advances of funds
pursuant to this Agreement, and the right to reimbursement pursuant to this
subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds,
Liquidation Proceeds and condemnation proceeds) which represent late recoveries
of the payments for which such advances were made;
(vi) to
reimburse the related Servicer (or any successor thereto) for any Advance or
advance, after a Realized Loss has been allocated with respect to the related
Mortgage Loan if the Advance or advance has not been reimbursed pursuant to
clauses (ii) and (v);
(vii) Reserved;
(viii) to
reimburse the Trustee or the Securities Administrator for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to this Agreement
(including the expenses of the Securities Administrator in connection with
a tax
audit in connection with the performance of its obligations pursuant to
Section 9.13);
(ix) to
pay to
the Trust Fund, as additional servicing compensation, any Excess Liquidation
Proceeds to the extent not retained by the related Servicer;
(x) to
reimburse or pay the related Servicer any such amounts as are due thereto under
this Agreement or the Servicing Agreement and have not been retained by or
paid
to the related Servicer, to the extent provided herein or therein;
(xi) to
reimburse the Trustee or the Master Servicer for expenses incurred in the
transfer of servicing responsibilities of a terminated Servicer after the
occurrence and continuance of a Servicer Default to the extent not paid by
the
terminated Servicer;
(xii) to
reimburse the Master Servicer for any costs and expenses reimbursable to the
Master Servicer pursuant to this Agreement;
(xiii) to
reimburse the Custodian for expenses, costs and liabilities incurred or
reimbursable to it pursuant to this Agreement or the Custodial
Agreement;
(xiv) to
remove
amounts deposited in error; and
(xv) to
clear
and terminate the Distribution Account pursuant to
Section 10.01.
(b) The
Securities Administrator shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Accounts pursuant to subclauses (ii) through
(v), inclusive or with respect to any such amounts which would have been covered
by such subclauses had the amounts not been retained by the Securities
Administrator without being deposited in the Distribution Accounts under
Section 3.31.
(c) On
each
Distribution Date, the Securities Administrator shall distribute the Available
Funds and the Available Distribution Amounts, to the extent of funds on deposit
in the related sub-account of the Distribution Account to the holders of the
related Certificates in accordance with Sections 5.04, 5.05 and
5.06.
Section
3.33 Duties
of the Credit Risk Manager; Termination.
(a) The
Depositor hereby appoints Xxxxx Fargo Bank, National Association as Credit
Risk
Manager. The Credit Risk Manager shall perform certain services related to
servicer review and oversight, monitoring and reporting of various Mortgage
Loans and the Servicers’ performance, preparation of Mortgage Loan and REO
Property payment, delinquency and loss information, reconciliation of Prepayment
Charge collections by such Servicer and monitoring information related to
insurance claims and foreclosures. If the Credit Risk Manager is not also acting
as the Master Servicer, the related Servicer shall furnish to the Credit Risk
Manager a copy of all reports required to be provided by such Servicer to the
Master Servicer pursuant to Section 3.28, which reports shall be provided
in electronic format, and Xxxxx Fargo shall furnish to the Credit Risk Manager
all reports required to provided in Section 5.02 of the Servicing Agreement
as provided therein. No later than the end of each calendar month, the Credit
Risk Manager shall prepare and make available certain reports containing various
performance, payment, delinquency and loss information and information related
to insurance claims and foreclosures. Such reports shall be made available
through the facilities of Xxxxx Fargo’s corporate trust services website,
currently located at xxx.XXXXxxx.xxx,
and
shall be in a format and contain such content as is mutually agreed upon by
the
Sponsor and the Credit Risk Manager. None of the Trustee, the Securities
Administrator, the Servicers or the Master Servicer shall have any obligation
to
review such reports or otherwise monitor or supervise the activities of the
Credit Risk Manager.
(b) The
Transaction Parties acknowledge and agree that the reports that are compiled
and
prepared by the Credit Risk Manager are based on information provided to the
Credit Risk Manager by the Servicers, the Master Servicer and from various
unaffiliated third parties, including other Persons involved in the servicing
and administration of the related Mortgage Loans or related REO Properties.
The
Credit Risk Manager makes no representation or warranty as to the accuracy
or
completeness of any such information or data, and the Credit Risk Manager shall
not be responsible for any misstatements, omissions, errors, or inaccuracies
in
any such reports or information resulting from any misstatements, omissions,
errors, or inaccuracies in any information or data provided by third
parties.
Section
3.34 Intellectual
Property and Confidentiality.
The
Transaction Parties acknowledge and agree that the Credit Risk Manager’s and the
Servicers’ services hereunder involve the use of various data, information,
templates, processes, ideas, inventions, technology, software, algorithms,
mathematical models, analytical tools, evaluative processes, parameters,
measurements, methods, know-how, techniques, business practices,
functionalities, ideas and concepts developed or utilized by such parties or
their affiliates in connection with the performance of their obligations under
this Agreement and various other services (collectively, “Intellectual
Property”),
and
that all such Intellectual Property is the sole and exclusive property of the
respective party and its Affiliates and that no license for use of such
Intellectual Property is granted hereby or can be implied by the terms of this
Agreement or the activities of the parties hereunder. The Transaction Parties
covenant and agree to preserve the confidentiality of such Intellectual
Property, and further covenant and agree that neither the Transaction Parties
nor any of their affiliates, directors, officers, employees, agents or
representatives, including their outside counsel, auditors and advisors,
respectively, shall use (or otherwise appropriate in any respect) any such
Intellectual Property or disclose, publicize, transfer, or otherwise compromise
the value of any such Intellectual Property, unless such Transaction Party
is
required by law or court order to disclose all or any part of the Intellectual
Property or except to another Transaction Party in connection with its
obligations hereunder.
Section
3.35 Limitation
Upon Liability of Credit Risk Manager; Indemnification.
Neither
the Credit Risk Manager nor any of the directors, officers, employees, or agents
of the Credit Risk Manager shall be under any liability to any Servicer, the
Master Servicer, the Securities Administrator, the Trustee, the
Certificateholders or the Depositor for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement in reliance
upon information provided by such Servicer, the Master Servicer or any
Transaction Party or of errors in judgment; provided, however, that this
provision shall not protect the Credit Risk Manager or any such person against
any breach of representations or warranties made herein, failure to perform
its
obligations hereunder, or any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith, or gross negligence of the Credit
Risk
Manager in the performance of its duties hereunder or by reason of a breach
of
its obligations and duties under this Agreement. The Credit Risk Manager and
any
officer, employee or agent of the Credit Risk Manager may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. Subject to the terms of this
Agreement, the Credit Risk Manager shall be under no obligation to appear in,
prosecute, or defend any legal action which, in its reasonable opinion, may
involve it in any expense or liability; provided, however, that the Credit
Risk
Manager may with the consent of the applicable Transaction Party, and at such
Transaction Party’s expense, undertake any such action that it may deem
necessary or desirable in respect to this Agreement and the rights, duties,
and
the interests of the parties hereto.
The
Credit Risk Manager shall be indemnified by the Trust Fund and held harmless
thereby against any loss, liability or expense (including reasonable legal
fees
and disbursements of counsel) incurred on its part that may be sustained in
connection with, arising out of, or relating to this Agreement or any action
taken or not taken by it under this Agreement unless such claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements were imposed on, incurred by or asserted against
the
Credit Risk Manager or such other Person solely as a result of (i) the breach
by
the Credit Risk Manager of its obligations hereunder, which breach would subject
the Credit Risk Manager to liability pursuant to the first paragraph of this
Section or (ii) the breach by a Transaction Party of its obligations under
this Agreement, in which case the related Transaction Party (with the exception
of the Trustee) shall indemnify the Credit Risk Manager. Notwithstanding the
foregoing, neither the Trust Fund nor the Transaction Parties shall indemnify
the Credit Risk Manager for ordinary costs and expenses otherwise incurred
by
the Credit Risk Manager in the performance of the Credit Risk Manager’s duties
under this Agreement. The foregoing indemnification shall survive the
termination of this agreement or the termination, removal or substitution of
any
party to this Agreement.
Section
3.36 Resignation
or Removal of Credit Risk Manager.
The
Credit Risk Manager may resign upon thirty (30) days’ prior written notice to
the Trustee. The Credit Risk Manager may be removed as Credit Risk Manager
hereunder upon any material breach by the Credit Risk Manager in the performance
of its duties hereunder following written notice of such breach provided by
the
Trustee at the direction of Certificateholders holding not less than a 66-2/3%
of the Voting Rights and the Credit Risk Manager’s failure to cure such breach
within a reasonable period following such notice.
ARTICLE
IV
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS
Section
4.01 The
Master Servicer.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicers
to
service and administer the Mortgage Loans in accordance with the terms of this
Agreement and the Servicing Agreement and shall have full power and authority
to
do any and all things which it may deem necessary or desirable in connection
with such master servicing and administration. In performing its obligations
hereunder, the Master Servicer shall act in a manner consistent with Accepted
Master Servicing Practices. Furthermore, the Master Servicer shall oversee
and
consult with the Servicers as necessary from time-to-time to carry out the
Master Servicer’s obligations hereunder, shall receive, review and evaluate all
reports, information and other data provided to the Master Servicer by the
Servicers and shall cause each Servicer to perform and observe the covenants,
obligations and conditions to be performed or observed by such Servicer under
this Agreement or the Servicing Agreement, as applicable. The Master Servicer
shall independently and separately monitor the servicing activities of the
Servicers with respect to each Mortgage Loan, reconcile the results of such
monitoring with such information provided in the previous sentence on a monthly
basis and coordinate corrective adjustments to the Servicers and Master
Servicer’s records, and based on such reconciled and corrected information,
provide such information relating to the Mortgage Loans to the Securities
Administrator as shall be necessary to enable it to prepare the statements
specified in Section 5.06 and any other information and statements required
to be provided by the Securities Administrator hereunder. The Master Servicer
shall reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the Servicers to the Distribution Account.
The
Trustee shall furnish the Servicers and the Master Servicer with any limited
powers of attorney and other documents in form acceptable to the Trustee
necessary or appropriate to enable the Servicer and the Master Servicer to
service or master service and administer the Mortgage Loans and REO Property.
The Trustee shall have no responsibility for any action of the Master Servicer
or a Servicer pursuant to any such limited power of attorney and shall be
indemnified by the Master Servicer or the related Servicer for any cost,
liability or expense arising from the misuse thereof by the Master Servicer
or
the related Servicer.
The
Trustee, the Custodian and the Securities Administrator shall provide access
to
the records and documentation in possession of the Trustee, the Custodian or
the
Securities Administrator regarding the Mortgage Loans and REO Property and
the
servicing thereof to the Certificateholders, the FDIC, and the supervisory
agents and examiners of the FDIC, such access being afforded only upon
reasonable prior written request and during normal business hours at the office
of the Trustee, the Custodian or the Securities Administrator; provided,
however, that, unless otherwise required by law, none of the Trustee, the
Custodian or the Securities Administrator shall be required to provide access
to
such records and documentation if the provision thereof would violate the legal
right to privacy of any Mortgagor. The Trustee, the Custodian and the Securities
Administrator shall allow representatives of the above entities to photocopy
any
of the records and documentation and shall provide equipment for that purpose
at
a charge that covers the Trustee’s, the Custodian’s or the Securities
Administrator’s actual costs.
The
Trustee shall execute and deliver to the related Servicer or the Master Servicer
upon request any court pleadings, requests for trustee’s sale or other documents
necessary or desirable and, in each case, provided to the Trustee by the related
Servicer or the Master Servicer to (i) the foreclosure or trustee’s sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or any other Loan Document;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or any other Mortgage
Loan Document or otherwise available at law or equity.
Section
4.02 Monitoring
of Servicers.
The
Master Servicer shall be responsible for monitoring the compliance by the
Servicers with their respective duties under this Agreement and the Servicing
Agreement. In the review of each Servicer’s activities, the Master Servicer may
rely upon an officer’s certificate of such Servicer with regard to such
Servicer’s compliance with the terms of this Agreement or the Servicing
Agreement, as applicable. In the event that the Master Servicer, in its
judgment, determines that a Servicer should be terminated in accordance with
this Agreement or the Servicing Agreement, as applicable, or that a notice
should be sent pursuant to this Agreement or the Servicing Agreement, as
applicable with respect to the occurrence of an event that, unless cured, would
constitute grounds for such termination, the Master Servicer shall notify the
Sponsor and the Trustee thereof and the Master Servicer (or, in the case of
Xxxxx Fargo, the Trustee) shall issue such notice or take such other action
as
it deems appropriate.
The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of the Servicers under this Agreement and the
Servicing Agreement, and the Master Servicer (or, if Xxxxx Fargo is the
defaulting Servicer, the Trustee) shall, in the event that a Servicer fails
to
perform its obligations in accordance with this Agreement or the Servicing
Agreement, as applicable, subject to this Section, Article VIII and the
Servicing Agreement, terminate the rights and obligations of such Servicer
hereunder or under the Servicing Agreement, as applicable in accordance with
the
provisions of Article VIII or the Servicing Agreement, as applicable. The Master
Servicer (or, if Xxxxx Fargo is the defaulting Servicer, the Trustee) shall
act
as servicer of the Mortgage Loans or enter in to a new servicing agreement
with
a successor servicer selected by the Master Servicer (or, if Xxxxx Fargo is
the
defaulting Servicer, the Trustee); provided, however, it is understood and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to the Master Servicer, the Trustee or such successor servicer.
Such
enforcement, including, without limitation, the legal prosecution of claims
and
the pursuit of other appropriate remedies, shall be in such form and carried
out
to such an extent and at such time as the Master Servicer or the Trustee, as
applicable, in its good faith business judgment, would require were it the
owner
of the Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense, provided that the Master Servicer shall not
be
required to prosecute or defend any legal action except to the extent that
the
Master Servicer shall have received indemnity reasonably acceptable to it for
its costs and expenses in pursuing such action.
To
the
extent that the costs and expenses related to the termination of a Servicer,
appointment of a Successor Servicer or the transfer and assumption of servicing
by the Master Servicer or the Trustee if Xxxxx Fargo is the defaulting Servicer
(including, without limitation, (i) all legal costs and expenses and all due
diligence costs and expenses associated with an evaluation of the potential
termination of defaulting Servicer as a result of an event of default by such
Servicer and (ii) all costs and expenses associated with the complete transfer
of servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Successor Servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Successor Servicer to service the
related Mortgage Loans in accordance with this Agreement or the Servicing
Agreement, as applicable) are not fully and timely reimbursed by the terminated
Servicer, the Master Servicer or the Trustee, as applicable shall be entitled
to
reimbursement of such costs and expenses from the Distribution
Account.
The
Master Servicer shall require the Servicer to comply with the remittance
requirements and other obligations set forth in this Agreement and the Servicing
Agreement.
If
the
Master Servicer or the Trustee acts as a Successor Servicer, it shall not assume
liability for the representations and warranties of the terminated Servicer,
if
any, that it replaces.
Section
4.03 Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy that shall be in such form
and
amount generally acceptable for entities serving as master servicers or
trustees, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer’s behalf, and covering errors
and omissions in the performance of the Master Servicer’s obligations hereunder.
Any such errors and omissions policy and fidelity bond may not be cancelable
without thirty (30) days’ prior written notice to the Trustee.
Section
4.04 Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Section 9.13 hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Loan, in each case, in
accordance with the provisions of this Agreement; provided, however, that the
Master Servicer shall not (and, consistent with its responsibilities under
Section 4.02, shall not permit the Servicer to) knowingly or intentionally
take any action, or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, would cause any REMIC to fail to qualify as a REMIC or result
in
the imposition of a tax upon the Trust Fund (including but not limited to the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) unless the Master Servicer has received an Opinion of Counsel (but not
at
the expense of the Master Servicer) to the effect that the contemplated action
will not cause any REMIC to fail to qualify as a REMIC or result in the
imposition of a tax upon any REMIC. The Trustee shall furnish the Master
Servicer, upon written request from a Servicing Officer or an Authorized
Servicer Representative, with any powers of attorney (in form acceptable to
Trustee) empowering the Master Servicer, or the related Servicer to execute
and
deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to
the
Mortgage Loans or the Mortgaged Property, in accordance with this Agreement,
and
the Trustee shall execute and deliver such other documents, as the Master
Servicer or the related Servicer may request, to enable the Master Servicer
to
master service and administer the Mortgage Loans and carry out its duties
hereunder, in each case in accordance with Accepted Master Servicing Practices
(and the Trustee shall have no liability for the misuse of any such powers
of
attorney by the Master Servicer or the related Servicer and shall be indemnified
by the Master Servicer or the related Servicer, as applicable, for any costs,
liabilities or expenses incurred by the Trustee in connection with such misuse).
If the Master Servicer or the Trustee has been advised that it is likely that
the laws of the state in which action is to be taken prohibit such action if
taken in the name of the Trustee or that the Trustee would be adversely affected
under the “doing business” or tax laws of such state if such action is taken in
its name, the Master Servicer shall join with the Trustee in the appointment
of
a co-trustee pursuant to Section 9.10 hereof. In the performance of its
duties hereunder, the Master Servicer shall be an independent contractor and
shall not, except in those instances where it is taking action authorized
pursuant to this Agreement to be taken by it in the name of the Trustee, be
deemed to be the agent of the Trustee.
Section
4.05 Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicers to enforce such clauses in accordance with
this Agreement and the Servicing Agreement. If applicable law prohibits the
enforcement of a due-on-sale clause or such clause is otherwise not enforced
in
accordance with this Agreement, and, as a consequence, a Mortgage Loan is
assumed, the original Mortgagor may be released from liability in accordance
with this Agreement or the Servicing Agreement, as applicable.
Section
4.06 Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
The
Master Servicer shall transmit to the Trustee or Custodian such documents and
instruments coming into the possession of the Master Servicer from time to
time
as are required by the terms hereof to be delivered to the Trustee or the
Custodian. Any funds received by the Master Servicer in respect of any Mortgage
Loan or which otherwise are collected by the Master Servicer as Liquidation
Proceeds, Insurance Proceeds or Subsequent Recoveries in respect of any Mortgage
Loan shall be held for the benefit of the Trustee and the Certificateholders
subject to the Master Servicer’s right to retain or withdraw from the
Distribution Account the Master Servicing Fee and other amounts provided in
this
Agreement. The Master Servicer, to the extent required by Article III or the
Servicing Agreement, as applicable, shall cause each Servicer to, provide access
to information and documentation regarding the related Mortgage Loans to the
Trustee, its agents and accountants at any time upon reasonable request and
during normal business hours, and to Certificateholders that are savings and
loan associations, banks or insurance companies, the OTS, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the OTS or other regulatory authority,
such access to be afforded without charge but only upon reasonable request
in
writing and during normal business hours at the offices of the Master Servicer
designated by it. In fulfilling such a request the Master Servicer shall not
be
responsible for determining the sufficiency of such information.
All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, shall be held by the Master Servicer for and on behalf of the Trustee
and the Certificateholders and shall be and remain the sole and exclusive
property of the Trustee; provided, however, that the Master Servicer and the
Servicer shall be entitled to setoff against, and deduct from, any such funds
any amounts that are properly due and payable to the Master Servicer or the
related Servicer under this Agreement or the Servicing Agreement, as
applicable.
Section
4.07 Standard
Hazard Insurance and Flood Insurance Policies.
For
each
Mortgage Loan, the Master Servicer shall enforce any obligation of the related
Servicer under this Agreement or the Servicing Agreement, as applicable to
maintain or cause to be maintained standard fire and casualty insurance and,
where applicable, flood insurance, all in accordance with the provisions of
this
Agreement or the Servicing Agreement, as applicable. It is understood and agreed
that such insurance shall be with insurers meeting the eligibility requirements
set forth in this Agreement or the Servicing Agreement, as applicable and that
no earthquake or other additional insurance is to be required of any Mortgagor
or to be maintained on property acquired in respect of a defaulted Mortgage
Loan, other than pursuant to such applicable laws and regulations as shall
at
any time be in force and as shall require such additional
insurance.
Pursuant
to Section 3.31, any amounts collected by the Master Servicer, under any
insurance policies (other than amounts to be applied to the restoration or
repair of the property subject to the related Mortgage or released to the
Mortgagor in accordance with this Agreement or the Servicing Agreement, as
applicable) shall be deposited into the Distribution Account, subject to
withdrawal pursuant to Section 3.32.
Section
4.08 Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall enforce each Servicer’s obligations to prepare and present
on behalf of the Trustee and the Certificateholders all claims under any
insurance policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured’s claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to the related Servicer and remitted to the Master
Servicer) in respect of such policies, bonds or contracts shall be promptly
deposited in the Distribution Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property as a condition precedent to the presentation of claims on
the
related Mortgage Loan to the insurer under any applicable insurance policy
need
not be so deposited (or remitted).
Section
4.09 Maintenance
of the Primary Mortgage Insurance Policies.
The
Master Servicer shall not take, or (to the extent within its control) permit
a
Servicer (to the extent such action is prohibited under this Agreement or the
Servicing Agreement, as applicable) to take, any action that would result in
noncoverage under any primary mortgage insurance policy or any loss which,
but
for the actions of such Master Servicer or the related Servicer, would have
been
covered thereunder. The Master Servicer shall use its best reasonable efforts
to
cause the related Servicer to keep in force and effect (to the extent that
the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement or the Servicing Agreement, as applicable. The
Master Servicer shall not, and (to the extent within its control) shall not
permit the related Servicer to, cancel or refuse to renew any primary mortgage
insurance policy that is in effect at the date of the initial issuance of the
Mortgage Note and is required to be kept in force hereunder except in accordance
with the provisions of this Agreement or the Servicing Agreement, as
applicable.
The
Master Servicer agrees to cause the related Servicer to present, on behalf
of
the Trustee and the Certificateholders, claims to the insurer under any primary
mortgage insurance policies and, in this regard, to take such reasonable action
as shall be necessary to permit recovery under any primary mortgage insurance
policies respecting defaulted Mortgage Loans. Pursuant to Section 3.31 of
this Agreement or pursuant to the Servicing Agreement, as applicable, any
amounts collected by the related Master Servicer or the Servicer under any
primary mortgage insurance policies shall be deposited by the Servicer or by
the
Master Servicer in the Distribution Account, subject to withdrawal pursuant
to
Section 3.32.
Section
4.10 Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
The
Trustee or the Custodian, shall retain possession and custody of the originals
(to the extent available) of any primary mortgage insurance policies, or
certificate of insurance if applicable, and any certificates of renewal as
to
the foregoing as may be issued from time to time as contemplated by this
Agreement. Until all amounts distributable in respect of the Certificates have
been distributed in full and the Master Servicer and the related Servicer
otherwise have fulfilled its obligations under this Agreement or the Servicing
Agreement, as applicable, the Trustee or the Custodian shall also retain
possession and custody of each Mortgage File in accordance with and subject
to
the terms and conditions of this Agreement and the Custodial Agreement. The
Master Servicer shall promptly deliver or cause to be delivered to the Trustee
or the Custodian, upon the execution or receipt thereof the originals of any
primary mortgage insurance policies, any certificates of renewal, and such
other
documents or instruments that constitute Mortgage Loan Documents that come
into
the possession of the Master Servicer from time to time.
Section
4.11 Realization
Upon Defaulted Loans.
The
Master Servicer shall cause each Servicer to foreclose upon, repossess or
otherwise comparably convert the ownership of Mortgaged Properties securing
such
of the Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with this Agreement or the Servicing Agreement, as
applicable.
Section
4.12 Compensation
for the Master Servicer.
As
compensation for its services hereunder, the Master Servicer shall be entitled
to receive the Master Servicing Fee and all income and gain realized from any
investment of funds in the Distribution Account (the “Master Servicing
Compensation”). The Master Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder and shall not be
entitled to reimbursement therefor except as provided in this
Agreement.
The
amount of the Master Servicing Compensation payable to the Master Servicer
in
respect of any Distribution Date shall be reduced in accordance with
Section 4.14.
Section
4.13 REO
Property.
In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall cause the related Servicer to sell, and the related Servicer agrees to
sell, any REO Property as expeditiously as possible and in accordance with
the
provisions of this Agreement or the Servicing Agreement, as applicable. Further,
the Master Servicer shall cause each Servicer to sell any REO Property prior
to
three years after the end of the calendar year of its acquisition by
REMIC IA or REMIC IIA, unless (i) the Trustee and the Securities
Administrator shall have been supplied with an Opinion of Counsel to the effect
that the holding by the Trust Fund of such REO Property subsequent to such
three-year period will not result in the imposition of taxes on “prohibited
transactions” of any REMIC hereunder as defined in Section 860F of the Code
or cause any REMIC hereunder to fail to qualify as a REMIC at any time that
any
Certificates are outstanding, in which case the Trust Fund may continue to
hold
such Mortgaged Property (subject to any conditions contained in such Opinion
of
Counsel) or (ii) the related Servicer shall have applied for, prior to the
expiration of such three-year period, an extension of such three-year period
in
the manner contemplated by Section 856(e)(3) of the Code, in which case the
three-year period shall be extended by the applicable extension period. The
Master Servicer shall cause each Servicer to protect and conserve, such REO
Property in the manner and to the extent required by this Agreement, in
accordance with the REMIC Provisions and in a manner that does not result in
a
tax on “net income from foreclosure property” or cause such REO Property to fail
to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code.
The
Master Servicer shall cause each Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the related
Custodial Account.
The
Master Servicer and the related Servicer upon the final disposition of any
REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
from Liquidation Proceeds received in connection with the final disposition
of
such REO Property; provided, that any such unreimbursed Advances may be
reimbursed or paid, as the case may be, prior to final disposition, out of
any
net rental income or other net amounts derived from such REO
Property.
Section
4.14 Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
The
Master Servicer shall deposit in the Distribution Account not later than each
Distribution Date an amount equal to the lesser of (i) the aggregate amounts
required to be paid by the related Servicer under this Agreement or the
Servicing Agreement, as applicable with respect to Prepayment Interest
Shortfalls on the Mortgage Loans serviced by such Servicer for the related
Distribution Date, and not so paid by such Servicer and (ii) the Master
Servicing Compensation (exclusive of the portion of such compensation payable
to
the Credit Risk Manager) for such Distribution Date without reimbursement
therefor.
ARTICLE
V
ADVANCES
AND DISTRIBUTIONS
Section
5.01 Advances;
Advance Facility.
(a) GMACM
shall make an Advance with respect to any GMACM Mortgage Loan and deposit such
Advance in the Distribution Account no later than noon Eastern time on the
Remittance Date in immediately available funds. A Servicer shall be obligated
to
make any such Advance only to the extent that such advance would not be a
Nonrecoverable Advance. If a Servicer shall have determined that it has made
a
Nonrecoverable Advance or that a proposed Advance or a lesser portion of such
Advance would constitute a Nonrecoverable Advance, such Servicer shall deliver
(i) to the Securities Administrator for the benefit of the Certificateholders
funds constituting the remaining portion of such Advance, if applicable, and
(ii) to the Depositor, each Rating Agency and the Master Servicer an Officer’s
Certificate setting forth the basis for such determination.
In
lieu
of making all or a portion of such Advance from its own funds, GMACM may (i)
cause to be made an appropriate entry in its records relating to the related
Custodial Account that any Amounts Held for Future Distribution has been used
by
GMACM in discharge of its obligation to make any such Advance and (ii) transfer
such funds from the related Custodial Account to the Distribution Account.
Any
funds so applied and transferred shall be replaced by GMACM Servicer by deposit
in the Distribution Account, no later than the close of business on any future
Remittance Date on which the funds on deposit in the related Custodial Account
shall be less than the amount required to be remitted to the Securities
Administrator on such Remittance Date; provided, however that if the rating
of
GMACM (including any Successor Servicer) is less than “BBB”, the GMACM shall be
required to replace such funds by deposit to the Distribution Account, no later
than the close of business on the Remittance Date immediately following the
Due
Period or Prepayment Period for which such amounts relate.
GMACM
shall be entitled to be reimbursed from the related Custodial Account for all
Advances of its own funds made pursuant to this Section as provided in
Section 3.27 or pursuant to the Servicing Agreement, as applicable. The
obligation to make Advances with respect to any GMACM Mortgage Loan shall
continue until GMACM Mortgage Loan is paid in full or the related Mortgaged
Property or related REO Property has been liquidated or until the purchase
or
repurchase thereof (or substitution therefor) from the Trust Fund pursuant
to
any applicable provision of this Agreement, except as otherwise provided in
this
Section 5.01.
Subject
to and in accordance with the provisions of Article VIII hereof, in the event
that GMACM fails to make such Advance under this Agreement, then the Master
Servicer, as successor to GMACM or, if Xxxxx Fargo fails to make such and
Advance as required pursuant to the terms of the Servicing Agreement, the
Trustee, as successor to Xxxxx Fargo shall be obligated to make such Advance
only to the extent such Advance, if made, would not constitute a Nonrecoverable
Advance, subject to the provisions of Sections 5.01 and 8.02.
(b) (i)
GMACM
is hereby authorized to enter into a financing or other facility (any such
arrangement, an “Advance Facility”), the documentation for which complies with
Section 5.01(b)(v) below, under which (1) GMACM assigns or pledges its
rights under this Agreement to be reimbursed for any or all Advances and/or
Servicing Advances to (i) a Person, which may be a special-purpose
bankruptcy-remote entity (an “SPV”), (ii) a Person, which may simultaneously
assign or pledge such rights to an SPV or (iii) a lender (a “Lender”), which, in
the case of any Person or SPV of the type described in either of the preceding
clauses (i) or (ii), may directly or through other assignees and/or pledgees,
assign or pledge such rights to a Person, which may include a trustee acting
on
behalf of holders of debt instruments (any such Person or any such Lender,
an
“Advance Financing Person”), and/or (2) an Advance Financing Person agrees to
fund all the Advances and/or Servicing Advances required to be made by GMACM
pursuant to this Agreement. No consent of the Trustee, the Securities
Administrator, the Master Servicer, the Certificateholders or any other party
shall be required before the Servicer may enter into an Advance Facility nor
shall the Trustee, the Securities Administrator, the Master Servicer or the
Certificateholders be a third party beneficiary of any obligation of an Advance
Financing Person to such Servicer. Notwithstanding the existence of any Advance
Facility under which an Advance Financing Person agrees to fund Advances and/or
Servicing Advances, (A) GMACM (i) shall remain obligated pursuant to this
Agreement to make Advances and/or Servicing Advances pursuant to and as required
by this Agreement and (ii) shall not be relieved of such obligations by virtue
of such Advance Facility and (B) neither the Advance Financing Person nor any
GMACM Assignee (as hereinafter defined) shall have any right to proceed against
or otherwise contact any Mortgagor for the purpose of collecting any payment
that may be due with respect to any related GMACM Mortgage Loan or enforcing
any
covenant of such Mortgagor under the related Mortgage Loan documents.
(ii) If
GMACM
enters into an Advance Facility, such Servicer and the related Advance Financing
Person shall deliver to the Master Servicer and the Securities Administrator
at
the address set forth in Section 11.05 hereof no later than the Remittance
Date immediately following the effective date of such Advance Facility a written
notice (an “Advance Facility Notice”), stating (a) the identity of the Advance
Financing Person and (b) the identity of the Person (“GMACM’s Assignee”) that
will, subject to Section 5.01(b)(iii) hereof, have the right to make
withdrawals from the Custodial Account pursuant to Section 3.27 hereof to
reimburse previously unreimbursed Advances and/or Servicing Advances (“Advance
Reimbursement Amounts”). Advance Reimbursement Amounts (i) shall consist solely
of amounts in respect of Advances and/or Servicing Advances for which GMACM
would be permitted to reimburse itself in accordance with Section 3.27
hereof, assuming GMACM had made the related Advance(s) and/or Servicing
Advance(s) and (ii) shall not consist of amounts payable to a successor Servicer
in accordance with Section 3.27 hereof to the extent permitted under
Section 5.01(b)(v) below.
(iii) Notwithstanding
the existence of an Advance Facility, GMACM, on behalf of the Advance Financing
Person and the GMACM’s Assignee, shall be entitled to receive reimbursements of
Advances and/or Servicing Advances in accordance with Section 3.27 hereof,
which entitlement may be terminated by the Advance Financing Person pursuant
to
a written notice to the Master Servicer and the Securities Administrator in
the
manner set forth in Section 11.05 hereof. Upon receipt of such written
notice, GMACM shall no longer be entitled to receive reimbursement for any
Advance Reimbursement Amounts and GMACM’s Assignee shall immediately have the
right to receive from the related Custodial Account all Advance Reimbursement
Amounts. Notwithstanding the foregoing, and for the avoidance of doubt, (i)
GMACM and/or GMACM ’s Assignee shall only be entitled to reimbursement of
Advance Reimbursement Amounts hereunder from withdrawals from the related
Custodial Account pursuant to Section 3.27 of this Agreement and shall not
otherwise be entitled to make withdrawals or receive amounts that shall be
deposited in the Distribution Account pursuant to Section 3.31 hereof, and
(ii) none of the Trustee or the Certificateholders shall have any right to,
or
otherwise be entitled to, receive any Advance Reimbursement Amounts to which
GMACM or the GMACM’s Assignee, as applicable, shall be entitled pursuant to
Section 3.27 hereof. An Advance Facility may be terminated by the joint
written direction of GMACM and the related Advance Financing Person. Written
notice of such termination shall be delivered to the Trustee in the manner
set
forth in Section 11.05 hereof. None of the Depositor, Master Servicer, the
Securities Administrator or the Trustee shall, as a result of the existence
of
any Advance Facility, have any additional duty or liability with respect to
the
calculation or payment of any Advance Reimbursement Amount, nor, as a result
of
the existence of any Advance Facility, shall the Depositor, Master Servicer,
the
Securities Administrator or the Trustee have any additional responsibility
to
track or monitor the administration of the Advance Facility or the payment
of
Advance Reimbursement Amounts to GMACM’s Assignee. GMACM shall indemnify the
Master Servicer, the Securities Administrator, Depositor, the Trustee, any
successor Servicer and the Trust Fund for any claim, loss, liability or damage
resulting from any claim by the related Advancing Financing Person, except
to
the extent that such claim, loss, liability or damage resulted from or arose
out
of gross negligence, recklessness or willful misconduct on the part of the
Master Servicer, the Securities Administrator, Depositor, the Trustee or any
successor Servicer, as the case may be. GMACM shall maintain and provide to
any
successor Servicer and, upon request, the Trustee a detailed accounting on
a
loan-by-loan basis as to amounts advanced by, pledged or assigned to, and
reimbursed to any Advancing Financing Person. The successor Servicer shall
be
entitled to rely on any such information provided by GMACM, and the successor
Servicer shall not be liable for any errors in such information.
(iv) An
Advance Financing Person who receives an assignment or pledge of rights to
receive Advance Reimbursement Amounts and/or whose obligations are limited
to
the funding of Advances and/or Servicing Advances pursuant to an Advance
Facility shall not be required to meet the criteria for qualification as a
Servicer.
(v) As
between GMACM and its Advance Financing Person, on the one hand, and a successor
Servicer and its Advance Financing Person, if any, on the other hand, Advance
Reimbursement Amounts on a loan-by-loan basis with respect to each GMACM
Mortgage Loan as to which an Advance and/or Servicing Advance shall have been
made and be outstanding shall be allocated on a “first-in, first out” basis. In
the event the Servicer’s Assignee shall have received some or all of an Advance
Reimbursement Amount related to Advances and/or Servicing Advances that were
made by a Person other than the related Servicer or its related Advance
Financing Person in error, then the GMACM’s Assignee shall be required to remit
any portion of such Advance Reimbursement Amount to each Person entitled to
such
portion of such Advance Reimbursement Amount. Without limiting the generality
of
the foregoing, GMACM shall remain entitled to be reimbursed by the Advance
Financing Person for all Advances and/or Servicing Advances funded by GMACM
to
the extent the related Advance Reimbursement Amounts have not been assigned
or
pledged to such Advance Financing Person or GMACM’s Assignee.
(vi) For
purposes of any Officer’s Certificate of GMACM delivered pursuant to
Section 5.01(a), any Nonrecoverable Advance referred to therein may have
been made by GMACM. In making its determination that any Advance or Servicing
Advance theretofore made has become a Nonrecoverable Advance, GMACM shall apply
the same criteria in making such determination regardless of whether such
Advance or Servicing Advance shall have been made by GMACM.
(vii) Any
amendment to this Section 5.01(b) 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 5.01(b), including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Master Servicer, the Securities Administrator, the Trustee, the
Depositor and GMACM without the consent of any Certificateholder, provided
such
amendment complies with Section 11.01 hereof. All reasonable costs and
expenses (including attorneys’ fees) of each party hereto of any such amendment
shall be borne solely by GMACM. The parties hereto hereby acknowledge and agree
that: (a) the Advances and/or Servicing Advances financed by and/or pledged
to
an Advance Financing Person under any Advance Facility are obligations owed
to
GMACM payable only from the cash flows and proceeds received under this
Agreement for reimbursement of Advances and/or Servicing Advances only to the
extent provided herein, and none of the Master Servicer, the Securities
Administrator, the Trustee or the Trust Fund are, as a result of the existence
of any Advance Facility, obligated or liable to repay any Advances and/or
Servicing Advances financed by the Advance Financing Person; (b) GMACM will
be
responsible for remitting to the Advance Financing Person the applicable amounts
collected by it as reimbursement for Advances and/or Servicing Advances funded
by the Advance Financing Person, subject to the provisions of this Agreement;
and (c) none of the Master Servicer, the Securities Administrator or the Trustee
shall have any responsibility to track or monitor the administration of the
financing arrangement between GMACM and any Advance Financing
Person.
Section
5.02 Compensating
Interest Payments.
In
the
event that there is a Prepayment Interest Shortfall arising from a voluntary
Principal Prepayment in full by the Mortgagor with respect to any GMACM Mortgage
Loan during the portion of the Prepayment Period occurring in the month prior
to
the month in which the related Distribution Date occurs, GMACM shall deposit
into the related Custodial Account no later than the close of business on the
Remittance Date immediately preceding such Distribution Date, an amount equal
to
the Prepayment Interest Shortfall; and in case of such deposit, GMACM shall
not
be entitled to any recovery or reimbursement from the Depositor, the Trustee,
the Sponsor, the Trust Fund, the Master Servicer or the
Certificateholders.
Section
5.03 REMIC
Distributions.
On
each
Distribution Date the Securities Administrator, shall be deemed to allocate
distributions to the REMIC Regular Interests in accordance with
Section 5.11 hereof.
Section
5.04 Distributions
on the Group I Certificates.
(a) On
each
Distribution Date, the Available Distribution Amount for such Distribution
Date
shall be withdrawn by the Securities Administrator to the extent of funds on
deposit in the sub-account of the Distribution Account relating to the Group
I
Mortgage Loans and distributed as directed in accordance with the Remittance
Report for such Distribution Date, in the following order of
priority:
First,
in the
following order of priority:
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1.
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commencing
on the Distribution Date in January 2008, to the Supplemental Interest
Trust from the Interest Remittance Amount, any Group I Net Swap Payment
and any Swap Termination Payment owed to the Group I Swap Provider
(unless
the Group I Swap Provider is a Defaulting Party or the sole Affected
Party
(as defined in the ISDA Master Agreement) and to the extent not paid
by
the Securities Administrator from any upfront payment received pursuant
to
any replacement interest rate swap agreement that may be entered
into by
the Supplemental Interest Trust
Trustee);
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2.
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from
the Interest Remittance Amount for that Distribution Date remaining
after
distribution to the Supplemental Interest Trust pursuant to clause
(1)
above, to the holders of the Group I Senior Certificates on a pro
rata
basis based on the entitlement of each such Class, the related Senior
Interest Distribution Amount for each such Class and such Distribution
Date;
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3.
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to
the extent of the Interest Remittance Amount remaining after distribution
to the Supplemental Interest Trust pursuant to clause (1) above and
to the
Group I Senior Certificates pursuant to clause (2) above, to the
holders
of the Class I-M-1 Certificates, the Interest Distribution Amount
for such
Class for such Distribution Date;
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4.
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to
the extent of the Interest Remittance Amount remaining after distribution
to the Supplemental Interest Trust pursuant to clause (1) above,
to the
Group I Senior Certificates pursuant to clause (2) above and to the
holders of the Class I-M-1 Certificates pursuant to clause (3) above,
to
the holders of the Class I-M-2 Certificates, the Interest Distribution
Amount for such Class for such Distribution Date;
and
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5.
|
to
the extent of the Interest Remittance Amount remaining after distribution
to the Supplemental Interest Trust pursuant to clause (1) above,
to the
Group I Senior Certificates pursuant to clause (2) above, to the
holders
of the Class I-M-1 Certificates pursuant to clause (3) above and
to the
holders of the Class I-M-2 Certificates pursuant to clause (4) above,
to
the holders of the Class I-M-3 Certificates, the Interest Distribution
Amount for such Class for such Distribution
Date.
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Second,
to pay
to the Group I Offered Certificates in respect of principal, to the extent
of
the Available Distribution Amount remaining on each Distribution Date, the
Principal Distribution Amount for each Distribution Date, in the following
amount and order of priority:
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1.
|
commencing
on the Distribution Date in January 2008, to the Supplemental Interest
Trust, any Group I Net Swap Payment and any Swap Termination Payment
owed
to the Group I Swap Provider (unless the Group I Swap Provider is
a
Defaulting Party or the sole Affected Party (as defined in the ISDA
Master
Agreement) and to the extent not paid by the Securities Administrator
from
any upfront payment received pursuant to any replacement interest
rate
swap agreement that may be entered into by the Supplemental Interest
Trust
Trustee) remaining unpaid after the distribution of the Interest
Remittance Amount on such Distribution
Date;
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2.
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from
the Principal Distribution Amount remaining after distributions pursuant
to clause (1) above, the Senior Principal Distribution Amount for
such
Distribution Date, sequentially, to the Class I-A-1, Class I-A-2,
Class
I-A-3 and Class I-A-4 Certificates, in that order, until the Certificate
Principal Balance of each such Class has been reduced to
zero.
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3.
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to
the Class I-M-1 Certificates, in an amount equal to the Class M-1
Principal Distribution Amount for such Distribution Date, until the
Certificate Principal Balance thereof has been reduced to
zero.
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4.
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to
the Class I-M-2 Certificates, in an amount equal to the Class M-2
Principal Distribution Amount for such Distribution Date, until the
Certificate Principal Balance thereof has been reduced to
zero.
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5.
|
to
the Class I-M-3 Certificates, in an amount equal to the Class M-3
Principal Distribution Amount for such Distribution Date, until the
Certificate Principal Balance thereof has been reduced to
zero.
|
Notwithstanding
the foregoing, on any Distribution Date after the Certificate Principal Balances
of the Group I Mezzanine Certificates have been reduced to zero, the Senior
Principal Distribution Amount for that Distribution Date will be allocated
among
the Group I Senior Certificates concurrently and on a pro rata basis, based
on
the Certificate Principal Balance of each such Class.
Third,
after
the payment of interest and principal to the Group I Senior Certificates and
Group I Mezzanine Certificates as described in clauses First
and
Second
above,
any Net Monthly Excess Cashflow for such Distribution Date will be distributed
as follows:
|
1.
|
to
the Holders of the Group I Senior Certificates and Group I Mezzanine
Certificates in an amount equal to any Extra Principal Distribution
Amount
for such Distribution Date, payable to such Holders as part of the
Principal Distribution Amount in accordance with clause Second
above following distributions pursuant to
Section 5.04(f);
|
|
2.
|
sequentially,
to the holders of the Class I-M-1, Class I-M-2 and Class I-M-3
Certificates, in that order, the related Interest Carry Forward Amount
allocable to each such Class on such Distribution Date, following
distributions pursuant to
Section 5.04(f)(3);
|
|
3.
|
to
the Net WAC Reserve Fund, an amount equal to (i) with respect to
the Group
I Offered Certificates other than the Class I-A-4 Certificates, the
sum of
the Net WAC Rate Carryover Amounts, if any, with respect to such
Class and
(ii) with respect to the Class I-A-4 Certificates, the amount by
which the
sum of the related Net WAC Rate Carryover Amount exceeds the amount
received by the Securities Administrator with respect to the Group
I Swap
Agreement in respect of Net WAC Rate Carryover Amounts since the
prior
Distribution Date;
|
|
4.
|
to
the Supplemental Interest Trust and then from the Supplemental Interest
Trust to the Group I Swap Provider, any Swap Termination Payment
owed to
the Group I Swap Provider in the event of a Swap Provider Trigger
Event
and the Group I Swap Provider is a Defaulting Party or the sole Affected
Party (as defined in the ISDA Master Agreement) not paid on prior
Distribution Dates and to the extent not paid by the Securities
Administrator from any upfront payment received pursuant to any
replacement interest rate swap agreement that may be entered into
by the
Supplemental Interest Trust
Trustee;
|
|
5.
|
to
the holders of the Class I-X, the Class I-X Distribution Amount;
and
|
|
6.
|
to
the holders of the Class I-R Certificates, any remaining
amounts.
|
On
each
Distribution Date, the Securities Administrator, after making the required
distributions of interest and principal to the Group I Senior Certificates
and
Group I Mezzanine Certificates as described in clauses First
and
Second
above
and
after the distribution of the Net Monthly Excess Cashflow as described in clause
Third
above,
will withdraw from the Net WAC Reserve Fund the amounts on deposit therein
and
distribute such amounts to the Group I Senior Certificates and the Group I
Mezzanine Certificates in respect of any Net WAC Rate Carryover Amounts due
to
each such Class in the following manner and order of priority first, to the
Group I Senior Certificates, the related Net WAC Rate Carryover Amount (with
respect to the Class I-A-4 Certificates, after taking into account payments
made
pursuant to the Group I Swap Agreement but prior to taking into account payments
made pursuant to the Class I-A-4 Cap Contract) for each such Class for such
Distribution Date, on a pro rata basis, based on the entitlement of each such
Class; second, to the Class I-M-1 Certificates, the related Net WAC Rate
Carryover Amount for such Distribution Date for such Class; third, to the Class
I-M-2 Certificates, the related Net WAC Rate Carryover Amount for such
Distribution Date for such Class; and fourth, to the Class I-M-3 Certificates,
the related Net WAC Rate Carryover Amount for such Distribution Date for such
Class (prior to taking into account payment made pursuant to the Class I-M-3
Cap
Contract). Any amounts remaining in the Net WAC Reserve Fund will be distributed
to the Holder of the Class I-X Certificates.
(b) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Group I Mortgage Loans received during the related Prepayment Period and
deposited in the sub-account of the Distribution Account relating to the Group
I
Mortgage Loans will be withdrawn from such sub-account and distributed by the
Securities Administrator to the Class I-P Certificates and shall not be
available for distribution to the Holders of any other Class of Group I
Certificates. The payment of such Prepayment Charges shall not reduce the
Certificate Principal Balance of the Class I-P Certificates.
(c) On
the
Distribution Date in January 2012, the Securities Administrator shall make
a
payment of principal to the Class I-P Certificates in reduction of the
Certificate Principal Balance thereof from amounts on deposit in a separate
reserve account established and maintained by the Securities Administrator
for
the exclusive benefit of the Class I-P Certificateholders.
(d) Subject
to Section 10.02 hereof respecting the final distribution on a Class of
Group I Senior Certificates or Group I Subordinate Certificates, on each
Distribution Date the Securities Administrator shall make distributions to
each
Holder of a Group I Senior Certificate or Group I Subordinate Certificate of
record on the preceding Record Date either by wire transfer in immediately
available funds to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if (i) such Holder has so notified the
Securities Administrator at least five (5) Business Days prior to the related
Record Date and (ii) such Holder shall hold Regular Certificates with aggregate
principal denominations of not less than $1,000,000 or evidencing a Percentage
Interest aggregating ten percent (10%) or more with respect to such Class or,
if
not, by check mailed by First Class Mail to such Certificateholder at the
address of such Holder appearing in the Certificate Register. Notwithstanding
the foregoing, but subject to Section 10.02 hereof respecting the final
distribution, distributions with respect to Group I Senior Certificates and
Group I Subordinate Certificates registered in the name of a Depository shall
be
made to such Depository in immediately available funds.
(e) Net
Swap
Payments and Swap Termination Payments (other than Swap Termination Payments
resulting from a Swap Provider Trigger Event) payable by the Supplemental
Interest Trust to the Group I Swap Provider pursuant to the Group I Swap
Agreement shall be deducted from Interest Remittance Amount relating to Loan
Group I, and to the extent of any such remaining amounts due, from Principal
Remittance Amount, prior to any distributions to the Holders of the Group I
Certificates. On each Distribution Date, such amounts will be remitted to the
Supplemental Interest Trust, first to make any Group I Net Swap Payment owed
to
the Group I Swap Provider pursuant to the Group I Swap Agreement for such
Distribution Date, and second to make any Swap Termination Payment (not due
to a
Swap Provider Trigger Event) owed to the Group I Swap Provider pursuant to
the
Group I Swap Agreement for such Distribution Date. Any Swap Termination Payment
due as a result of the occurrence of a Swap Provider Trigger Event owed to
the
Swap Provider pursuant to the Group I Swap Agreement will be subordinated to
distributions to the Holders of the Group I Senior Certificates and Mezzanine
Certificates and shall be paid as set forth in clause (f) below.
(f) On
each
Distribution Date, the Securities Administrator shall distribute from the
amounts received from the Group I Swap Provider in respect of any Group I Net
Swap Payment then on deposit in the Supplemental Interest Trust in the following
order of priority:
|
(1)
|
to
the Holders of the Class or Classes of Group I Offered Certificates
then
entitled to receive distributions in respect of principal, in an
amount
necessary to maintain or restore (but in no instance to achieve)
the
Required Overcollateralization Amount prior to taking into account
distributions of Net Monthly Excess Cashflow made pursuant to clause
(1)
of clause “Third”
under
Section 5.04(a);
|
|
(2)
|
to
the Group
I Senior
Certificates, the Senior Interest Distribution Amount for such
Distribution Date and any Senior Interest Distribution Amount remaining
unpaid from a prior Distribution Date, on a pro rata basis based
on the
entitlement of each such Class, after giving effect to distributions
of
the Interest Remittance Amount pursuant to clause (2) of clause
“First”
under Section 5.04(a);
|
|
(3)
|
to
the Group
I Mezzanine
Certificates, in the order of the payment priority for each such
Class,
the Interest Distribution Amount for such Distribution Date and any
Interest Carry Forward Amounts for each such Class and Distribution
Date,
after giving effect to distributions of the Interest Remittance Amount
pursuant to clauses (3) through (5) of clause “First” under
Section 5.04(a) but prior to taking into account any distributions of
Net Monthly Excess Cashflow made pursuant to clause (2) of “Third”
of
Section 5.04(a);
|
|
(4)
|
to
the Class I-A-4 Certificates, any applicable Net WAC Rate Carryover
Amounts, prior to giving effect to any withdrawals from the Supplemental
Interest Trust from amounts available to be paid in respect of Net
WAC
Rate Carryover Amounts pursuant to clause (3) of clause “Third”
under Section 5.04(a) and prior to distribution of payments received
pursuant to the Class I-A-4 Cap Contract on such Distribution Date;
and
|
|
(5)
|
to
the Class I-X Certificates, any remaining
amounts.
|
Notwithstanding
the foregoing, in no instance will such payments (other than payments made
under
clause (5) above) be made other than to the extent of Realized Losses and Net
WAC Rate Carryover Amounts. Furthermore, unless and until the Required
Overcollateralization Amount has been reached, payments pursuant to clauses
(4) and (5) above shall be limited to the positive difference between (a)
the amount of such payment remaining after application of payments pursuant
to
clauses (1) through (3) above and (b) the Overcollateralization Increase Amount.
In no event shall monies in the Supplemental Interest Trust in respect of the
Group I Swap Agreement be used to achieve the Required Overcollateralization
Amount.
Amounts
payable by the Supplemental Interest Trust to the Securities Administrator
in
respect of Group I Net Swap Payments and Swap Termination Payments other than
Swap Termination Payments resulting from a Swap Provider Trigger Event (and
to
the extent not paid by the Securities Administrator from any upfront payment
received pursuant to any replacement interest rate swap agreement that may
be
entered into by the Supplemental Interest Trust Trustee) in respect of the
Group
I Swap Agreement will be deducted from related available funds before
distributions to the Holders of the Group I Offered Certificates. On or before
each Distribution Date, such amounts will be distributed by the trust to the
Securities Administrator, and paid by the Securities Administrator to the Group
I Swap Provider as follows:
(i) first
to
make any Group I Net Swap Payment owed to the Group I Swap Provider pursuant
to
the Group I Swap Agreement for such Distribution Date, and
(ii) second
to
make any Swap Termination Payment not due to a Swap Provider Trigger Event
owed
to the Group I Swap Provider pursuant to the Group I Swap Agreement (to the
extent not paid by the Securities Administrator from any upfront payment
received pursuant to any replacement interest rate swap agreement that may
be
entered into by the Securities Administrator).
Section
5.05 Distributions
on the Group II Certificates.
(a)
On
each Distribution Date, the Securities Administrator will withdraw funds on
deposit in the sub-account of the Distribution Account relating to the Group
II
Mortgage Loans and make distributions to the Holders of the Group II
Certificates in accordance with the Remittance Report for such Distribution
Date, in the following order of priority:
(i)(1) from
the
Interest Remittance Amount derived from the Group II-1 Mortgage Loans and Group
II-2 Mortgage Loans, to the Supplemental Interest Trust, an amount equal to
the
Group II-1 Allocation Percentage and the Group II-2 Allocation Percentage,
as
applicable, of any Group II Net Swap Payment and any Swap Termination Payment
owed to the Group II Swap Provider (unless the Group II Swap Provider is the
sole Defaulting Party or the sole Affected Party (as defined in the ISDA Master
Agreement) and to the extent not paid by the Securities Administrator from
any
upfront payment received pursuant to any replacement interest rate swap
agreement that may be entered into by the Supplemental Interest Trust
Trustee);
(2) from
the
Interest Remittance Amount derived from the Group II-1 Mortgage Loans and Group
II-2 Mortgage Loans remaining after payments pursuant to clause (1) above,
to
the Group II Senior Certificates, pro rata based on amounts due, Current
Interest and Carryforward Interest for such Distribution Date, provided that:
(a) the
Interest Remittance Amount derived from the Group II-1 Mortgage Loans will
be
distributed in the following order of priority: (x) first, to the Class II-1-A
Certificates, Current Interest and any Carryforward Interest for such Class
for
such Distribution Date; and then (y) concurrently, to the Class II-2-A-1A,
Class
II-2-A-1B, Class II-2-A-2, Class II-2-A-3, Class II-2-A-4A and Class II-2-A-4B
Certificates, Current Interest and Carryforward Interest for each such Class
for
such Distribution Date, on a pro rata basis based on the entitlement of each
such Class, after taking into account the distribution of the Interest
Remittance Amount derived from the Group II-2 Mortgage Loans on such
Distribution Date; and
(b) the
Interest Remittance Amount derived from the Group II-2 Mortgage Loans will
be
distributed in the following order of priority: (x) first, concurrently to
the
Class II-2-A-1A, Class II-2-A-1B, Class II-2-A-2, Class II-2-A-3, Class
II-2-A-4A and Class II-2-A-4B Certificates, Current Interest and any
Carryforward Interest for each such Class for such Distribution Date, on a
pro
rata basis based on the entitlement of each such Class; and then (y) to the
Class II-1-A Certificates, Current Interest and any Carryforward Interest for
such Class for such Distribution Date, after taking into account the
distribution of the Interest Remittance Amount derived from the Group II-1
Mortgage Loans on such Distribution Date;
(3) first,
from the Interest Remittance Amount derived from the Group II-2 Mortgage Loans,
and then from the Interest Remittance Amount derived from the Group II-1
Mortgage Loans remaining after payments pursuant to clauses (1) and (2) above,
to the Class II-M-1 Certificates, Current Interest and Carryforward Interest
for
such Class and Distribution Date;
(4) first,
from the Interest Remittance Amount derived from the Group II-2 Mortgage Loans,
and then from the Interest Remittance Amount derived from the Group II-1
Mortgage Loans remaining after payments pursuant to clauses (1) through (3)
above, to the Class II-M-2 Certificates, Current Interest and Carryforward
Interest for such Class and Distribution Date;
(5) first,
from the Interest Remittance Amount derived from the Group II-2 Mortgage Loans,
and then from the Interest Remittance Amount derived from the Group II-1
Mortgage Loans remaining after payments pursuant to clauses (1) through (4)
above, to the Class II-M-3 Certificates, Current Interest and Carryforward
Interest for such Class and Distribution Date;
(6) first,
from the Interest Remittance Amount derived from the Group II-2 Mortgage Loans,
and then from the Interest Remittance Amount derived from the Group II-1
Mortgage Loans remaining after payments pursuant to clauses (1) through (5)
above, to the Class II-M-4 Certificates, Current Interest and Carryforward
Interest for such Class and Distribution Date;
(7) first,
from the Interest Remittance Amount derived from the Group II-2 Mortgage Loans,
and then from the Interest Remittance Amount derived from the Group II-1
Mortgage Loans remaining after payments pursuant to clauses (1) through (6)
above, to the Class II-M-5 Certificates, Current Interest and Carryforward
Interest for such Class and Distribution Date;
(8) first,
from the Interest Remittance Amount derived from the Group II-2 Mortgage Loans,
and then from the Interest Remittance Amount derived from the Group II-1
Mortgage Loans remaining after payments pursuant to clauses (1) through (7)
above, to the Class II-M-6 Certificates, Current Interest and Carryforward
Interest for such Class and Distribution Date;
(9) first,
from the Interest Remittance Amount derived from the Group II-2 Mortgage Loans,
and then from the Interest Remittance Amount derived from the Group II-1
Mortgage Loans remaining after payments pursuant to clauses (1) through (8)
above, to the Class II-M-7 Certificates, Current Interest and Carryforward
Interest for such Class and Distribution Date;
(10) first,
from the Interest Remittance Amount derived from the Group II-2 Mortgage Loans,
and then from the Interest Remittance Amount derived from the Group II-1
Mortgage Loans remaining after payments pursuant to clauses (1) through (9)
above, to the Class II-M-8 Certificates, Current Interest and Carryforward
Interest for such Class and Distribution Date; and
(11) for
application as part of Monthly Excess Cashflow for such Distribution Date,
any
such Interest Remittance Amount remaining after application pursuant to clauses
(1) through (10) above.
(ii) The
Principal Payment Amount will be paid on each Distribution Date as
follows:
I. On
each
Distribution Date (x) prior to the Group II Stepdown Date or (y) with respect
to
which a Group II Trigger Event is in effect, the Principal Payment Amount will
be paid in the following order of priority:
(A) to
the
Supplemental Interest Trust from the Principal Payment Amount derived from
the
Group II-1 Mortgage Loans and the Group II-2 Mortgage Loans, as applicable,
the
Group II-1 Allocation Percentage and Group II-2 Allocation Percentage,
respectively, as applicable, of any Group II Net Swap Payment and any Swap
Termination Payment owed to the Group II Swap Provider (unless the Group II
Swap
Provider is the sole Defaulting Party or the sole Affected Party (as defined
in
the ISDA Master Agreement) and to the extent not paid by the Securities
Administrator from any upfront payment received pursuant to any replacement
interest rate swap agreement that may be entered into by the Supplemental
Interest Trust Trustee) to the extent not paid from the Interest Remittance
Amount on such Distribution Date;
(B) from
the
Principal Payment Amount derived from the Group II-1 Mortgage Loans remaining
after payments pursuant to clause (A) above, to the Class II-1-A Certificates,
until its Certificate Principal Balance has been reduced to zero;
|
(C)
|
from
the Principal Payment Amount derived from the Group II-2 Mortgage
Loans
remaining after payments pursuant to clause (A) above, concurrently,
to the Group II-2 Senior Certificates as
follows:
|
(i) concurrently
to the Class II-2-A-1A Certificates and Class II-2-A-1B Certificates, the Class
II-2-A-1 Allocation Percentage of the remaining Principal Payment Amount derived
from the Group II-2 Mortgage Loans, on a pro rata basis, based on their
respective Certificate Principal Balances, until the Certificate Principal
Balance of each such Class has been reduced to zero; and
(ii) the
Senior Sequential Allocation Percentage of the remaining Principal Payment
Amount derived from the Group II-2 Mortgage Loans, sequentially, in the
following order of priority:
(1) first,
to
the Class II-2-A-2 Certificates, until its Certificate Principal Balance has
been reduced to zero;
(2) second,
to the Class II-2-A-3 Certificates, until its Certificate Principal Balance
has
been reduced to zero; and
(3) third,
concurrently, to the Class II-2-A-4A Certificates and the Class II-2-A-4B
Certificates, on a pro rata basis, based on their respective Certificate
Principal Balances, until the Certificate Principal Balance of each such Class
has been reduced to zero;
|
(D)
|
from
the Principal Payment Amount derived from the Group II-1 Mortgage
Loans
remaining after payments pursuant to clauses (A) and (B) above and
after the Certificate Principal Balance of the Class II-1-A Certificates
has been reduced to zero, to the Group II-2 Senior Certificates,
after
taking into account payments pursuant to clause (C) above, concurrently
as
follows, until the Certificate Principal Balance of each such Class
has
been reduced to zero:
|
(i) concurrently
to the Class II-2-A-1A Certificates and Class II-2-A-1B Certificates, the Class
II-2-A-1 Allocation Percentage of the remaining Principal Payment Amount derived
from the Group II-1 Mortgage Loans, on a pro rata basis, based on their
respective Certificate Principal Balances, until the Certificate Principal
Balance of each such Class has been reduced to zero; and
(ii) the
Senior Sequential Allocation Percentage of the remaining Principal Payment
Amount derived from the Group II-1 Mortgage Loans, sequentially, in the
following order of priority:
(1) first,
to
the Class II-2-A-2 Certificates, until its Certificate Principal Balance has
been reduced to zero;
(2) second,
to the Class II-2-A-3 Certificates, until its Certificate Principal Balance
has
been reduced to zero; and
(3) third,
concurrently, to the Class II-2-A-4A Certificates and the Class II-2-A-4B
Certificates, on a pro rata basis, based on their respective Certificate
Principal Balances, until the Certificate Principal Balance of each such Class
has been reduced to zero;
|
(E)
|
from
the Principal Payment Amount derived from the Group II-2 Mortgage
Loans
remaining after payments pursuant to clauses (A) and (C) above and
after the Certificate Principal Balances of the Group II-2 Senior
Certificates have been reduced to zero, to the Class II-1-A Certificates,
after taking into account payments pursuant to clause (B) above,
until its
Certificate Principal Balance has been reduced to
zero;
|
|
(F)
|
to
the Class II-M-1 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
|
|
(G)
|
to
the Class II-M-2 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
|
|
(H)
|
to
the Class II-M-3 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
|
|
(I)
|
to
the Class II-M-4 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
|
|
(J)
|
to
the Class II-M-5 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
|
|
(K)
|
to
the Class II-M-6 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
|
|
(L)
|
to
the Class II-M-7 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
|
|
(M)
|
to
the Class II-M-8 Certificates, until its Certificate Principal Balance
has
been reduced to zero; and
|
|
(N)
|
for
application as part of Monthly Excess Cashflow for such Distribution
Date,
any such Principal Payment Amount remaining after application pursuant
to
clauses I(A) through (M) above.
|
II. On
each
Distribution Date (x) on or after the Group II Stepdown Date and (y) with
respect to which a Group II Trigger Event is not in effect, the Principal
Payment Amount will be paid in the following order of priority:
| (A) |
to
the Supplemental Interest Trust from the Principal Payment Amount
derived
from the Group II-1 Mortgage Loans and the Group II-2 Mortgage Loans,
as
applicable, the Group II-1 Allocation Percentage and the Group II-2
Allocation Percentage, respectively, of any Group II Net Swap Payment
and
any Swap Termination Payment owed to the Group II Swap Provider (unless
the Group II Swap Provider is the sole Defaulting Party or the sole
Affected Party (as defined in the ISDA Master Agreement) and to the
extent
not paid by the Securities Administrator from any upfront payment
received
pursuant to any replacement interest rate swap agreement that may
be
entered into by the Supplemental Interest Trust Trustee) remaining
unpaid
after the distribution of the Interest Remittance Amount on such
Distribution Date;
|
| (B) |
concurrently
to the Group II Senior Certificates as
follows:
|
(i)
from
the Principal Payment Amount derived from the Group II-1 Mortgage Loans
remaining after payments pursuant to clause (A) above, the Group II-1
Allocation Amount, to the Class II-1-A Certificates until its Certificate
Principal Balance has been reduced to zero;
(B) from
the
Principal Payment Amount derived from the Group II-2 Mortgage Loans remaining
after payments pursuant to clause (A) above, the Group II-2 Allocation
Amount concurrently as follows:
(a) concurrently
to the Class II-2-A-1A Certificates and Class II-2-A-1B Certificates, the Class
II-2-A-1 Allocation Percentage of the Group II-2 Allocation Amount, on a pro
rata basis, based on their respective Certificate Principal Balances, until
the
Certificate Principal Balance of each such Class has been reduced to zero;
and
(b) the
Senior Sequential Allocation Percentage of the Group II-2 Allocation Amount,
sequentially, in the following order of priority:
(1) first,
to
the Class II-2-A-2 Certificates, until its Certificate Principal Balance has
been reduced to zero;
(2) second,
to the Class II-2-A-3 Certificates, until its Certificate Principal Balance
has
been reduced to zero; and
(3) third,
concurrently, to the Class II-2-A-4A Certificates and the Class II-2-A-4B
Certificates, on a pro rata basis, based on their respective Certificate
Principal Balances, until the Certificate Principal Balance of each such Class
has been reduced to zero;
| (C) |
concurrently
to the Group II Senior Certificates as
follows:
|
(i) from
the
Principal Payment Amount derived from the Group II-1 Mortgage Loans remaining
after payments pursuant to clauses (A) and (B) above and after the Certificate
Principal Balance of the Class II-1-A Certificates has been reduced to zero,
to
the Group II-2 Certificates, after taking into account payments pursuant to
clause II(B)(ii) above, concurrently as follows, until the Certificate Principal
Balance of each such Class has been reduced to zero:
(a) concurrently
to the Class II-2-A-1A Certificates and Class II-2-A-1B Certificates, the Class
II-2-A-1 Allocation Percentage of the Group II-2 Allocation Amount remaining
unpaid pursuant to clause (B) above, on a pro rata basis, based on their
respective Certificate Principal Balances, until the Certificate Principal
Balance of each such Class has been reduced to zero; and
(b) the
Senior Sequential Allocation Percentage of the Group II-2 Allocation Amount
remaining unpaid pursuant to clause (B) above, sequentially, in the following
order of priority:
(1) first,
to
the Class II-2-A-2 Certificates, until its Certificate Principal Balance has
been reduced to zero;
(2) second,
to the Class II-2-A-3 Certificates, until its Certificate Principal Balance
has
been reduced to zero; and
(3) third,
concurrently, to the Class II-2-A-4A Certificates and the Class II-2-A-4B
Certificates, on a pro rata basis, based on their respective Certificate
Principal Balances, until the Certificate Principal Balance of each such Class
has been reduced to zero;
(ii) from
the
Principal Payment Amount derived from the Group II-2 Mortgage Loans remaining
after payments pursuant to clauses (A) and (B) above and after the Certificate
Principal Balances of the Group II-2 Senior Certificates have been reduced
to
zero, the Group II-1 Allocation Amount remaining unpaid pursuant to clause
(B)
above to the Class II-1-A Certificates, until its Certificate Principal Balance
has been reduced to zero;
| (D) |
to
the Class II-M-1 Certificates, the Class II-M-1 Principal Payment
Amount
for such Distribution Date, until its Certificate Principal Balance
has
been reduced to zero;
|
| (E) |
to
the Class II-M-2 Certificates, the Class II-M-2 Principal Payment
Amount
for such Distribution Date, until its Certificate Principal Balance
has
been reduced to zero;
|
| (F) |
to
the Class II-M-3 Certificates, the Class II-M-3 Principal Payment
Amount
for such Distribution Date, until its Certificate Principal Balance
has
been reduced to zero;
|
| (G) |
to
the Class II-M-4 Certificates, the Class II-M-4 Principal Payment
Amount
for such Distribution Date, until its Certificate Principal Balance
has
been reduced to zero;
|
| (H) |
to
the Class II-M-5 Certificates, the Class II-M-5 Principal Payment
Amount
for such Distribution Date, until its Certificate Principal Balance
has
been reduced to zero;
|
| (I) |
to
the Class II-M-6 Certificates, the Class II-M-6 Principal Payment
Amount
for such Distribution Date, until its Certificate Principal Balance
has
been reduced to zero;
|
| (J) |
to
the Class II-M-7 Certificates, the Class II-M-7 Principal Payment
Amount
for such Distribution Date, until its Certificate Principal Balance
has
been reduced to zero;
|
| (K) |
to
the Class II-M-8 Certificates, the Class II-M-8 Principal Payment
Amount
for such Distribution Date, until its Certificate Principal Balance
has
been reduced to zero; and
|
| (L) |
for
application as part of Monthly Excess Cashflow for such Distribution
Date,
any such Principal Payment Amount remaining after application pursuant
to
clauses II(A) through (K) above.
|
Notwithstanding
the priority of distributions described in this section with respect to the
Group II Senior Certificates, on any Distribution Date which occurs after the
Certificate Principal Balances of the Group II Mezzanine Certificates have
been
reduced to zero distributions to the Group II-2 Senior Certificates in respect
of principal will be allocated concurrently to the Class II-2-A-1A, Class
II-2-A-1B, Class II-2-A-2, Class II-2-A-3, Class II-2-A-4A and Class II-2-A-4B
Certificates on a pro rata basis, based on the Certificate Principal Balance
of
each such Class, until the Certificate Principal Balance of each such Class
has
been reduced to zero.
(iii) On
each
Distribution Date, the Monthly Excess Cashflow will be distributed in the
following order of priority:
|
(1)(A)
|
until
the aggregate Certificate Principal Balance of the Group II Offered
Certificates equals the Aggregate Loan Balance for such Distribution
Date
(after giving effect to scheduled payments of principal due during
the
related Due Period to the extent received or advanced, unscheduled
collections of principal received during the related Prepayment Period
and
after reduction for Realized Losses on the Group II Mortgage Loans
incurred during the related Due Period) minus the Targeted
Overcollateralization Amount for such date, on each Distribution
Date (a)
prior to the Group II Stepdown Date or (b) with respect to which
a Group
II Trigger Event is in effect, to the extent of Monthly Excess Interest
for such Distribution Date, to the Group II Offered Certificates,
in the
following order of priority:
|
(i)
concurrently, to the Group II Senior Certificates as follows:
(a) the
Group
II-1 Excess Interest Amount in the following order of priority: (x) first,
to
the Class II-1-A Certificates, until its Certificate Principal Balance has
been
reduced to zero, and then (y) to the Group II-2 Senior Certificates, after
taking into account the distribution of the Group II-2 Excess Interest Amount,
concurrently as follows, until the Certificate Principal Balance of each such
Class has been reduced to zero:
(1) to
the
Class II-2-A-1A Certificates and Class II-2-A-1B Certificates, the Class
II-2-A-1 Allocation Percentage of the remaining Group II-1 Excess Interest
Amount, concurrently on a pro rata basis, based on their respective Certificate
Principal Balances, until the Certificate Principal Balance of each such Class
has been reduced to zero; and
(2) the
Senior Sequential Allocation Percentage of the remaining Group II-1 Excess
Interest Amount, sequentially, in the following order of priority:
(a) first,
to
the Class II-2-A-2 Certificates, until its Certificate Principal Balance has
been reduced to zero;
(b) second,
to the Class II-2-A-3 Certificates, until its Certificate Principal Balance
has
been reduced to zero; and
(c) third,
concurrently, to the Class II-2-A-4A Certificates and the Class II-2-A-4B
Certificates, on a pro rata basis, based on their respective Certificate
Principal Balances, until the Certificate Principal Balance of each such Class
has been reduced to zero;
(b) the
Group
II-2 Excess Interest Amount in the following order of priority:
(i) concurrently
as follows
(A) to
the
Class II-2-A-1A Certificates and Class II-2-A-1B Certificates, the Class
II-2-A-1 Allocation Percentage of the Group II-2 Excess Interest Amount,
concurrently on a pro rata basis, based on their respective Certificate
Principal Balances, until the Certificate Principal Balance of each such Class
has been reduced to zero; and
(B) the
Senior Sequential Allocation Percentage of the Group II-2 Excess Interest
Amount, sequentially, in the following order of priority:
(a) first,
to
the Class II-2-A-2 Certificates, until its Certificate Principal Balance has
been reduced to zero;
(b) second,
to the Class II-2-A-3 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
(c) third,
concurrently, to the Class II-2-A-4A Certificates and the Class II-2-A-4B
Certificates, concurrently on a pro rata basis, based on their respective
Certificate Principal Balances, until the Certificate Principal Balance of
each
such Class has been reduced to zero; and
(2) to
the
Class II-1-A Certificates, after taking into account the distribution of the
Group II-1 Excess Interest Amount, until its Certificate Principal Balance
has
been reduced to zero;
(ii)
to
the
Class II-M-1 Certificates, until its Certificate Principal Balance has been
reduced to zero;
|
(iii)
|
to
the Class II-M-2 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
|
|
(iv)
|
to
the Class II-M-3 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
|
|
(v)
|
to
the Class II-M-4 Certificates, until its Certificate Principal Balance
has
been reduced to zero;
|
|
(vi)
|
to
the Class II-M-5 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
|
|
(vii)
|
to
the Class II-M-6 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
|
| (viii) |
to
the Class II-M-7 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
and
|
| (ix) |
to
the Class II-M-8 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero.
|
(B) on
each
Distribution Date on or after the Group II Stepdown Date and with respect to
which a Group II Trigger Event is not in effect, to fund any principal
distributions required to be made on such Distribution Date set forth in
Section 5.05(a)(ii)(II), after giving effect to the distribution of the
Principal Payment Amount for such date, in accordance with the priorities set
forth therein;
|
(2)
|
concurrently,
to the Group II Senior Certificates, any Deferred Amount for such
Class on
a pro rata basis based on the entitlement of each such
Class;
|
|
(3)
|
to
the Class II-M-1 Certificates, any Deferred Amount for such
Class;
|
|
(4)
|
to
the Class II-M-2 Certificates, any Deferred Amount for such
Class;
|
|
(5)
|
to
the Class II-M-3 Certificates, any Deferred Amount for such
Class;
|
|
(6)
|
to
the Class II-M-4 Certificates, any Deferred Amount for such
Class;
|
|
(7)
|
to
the Class II-M-5 Certificates, any Deferred Amount for such
Class;
|
|
(8)
|
to
the Class II-M-6 Certificates, any Deferred Amount for such
Class;
|
|
(9)
|
to
the Class II-M-7 Certificates, any Deferred Amount for such
Class;
|
|
(10)
|
to
the Class II-M-8 Certificates, any Deferred Amount for such
Class;
|
|
(11)
|
to
the Basis Risk Shortfall Reserve Fund and then from the Basis Risk
Shortfall Reserve Fund to the Group II Senior Certificates, concurrently,
any Basis Risk Shortfall for each such Class, on a pro rata basis
based on
the entitlement of each such Class;
|
|
(12)
|
to
the Basis Risk Shortfall Reserve Fund and then from the Basis Risk
Shortfall Reserve Fund to the Class II-M-1 Certificates, any Basis
Risk
Shortfall for such Class;
|
|
(13)
|
to
the Basis Risk Shortfall Reserve Fund and then from the Basis Risk
Shortfall Reserve Fund to the Class II-M-2 Certificates, any Basis
Risk
Shortfall for such Class;
|
|
(14)
|
to
the Basis Risk Shortfall Reserve Fund and then from the Basis Risk
Shortfall Reserve Fund to the Class II-M-3 Certificates, any Basis
Risk
Shortfall for such Class;
|
|
(15)
|
to
the Basis Risk Shortfall Reserve Fund and then from the Basis Risk
Shortfall Reserve Fund to the Class II-M-4 Certificates, any Basis
Risk
Shortfall for such Class;
|
|
(16)
|
to
the Basis Risk Shortfall Reserve Fund and then from the Basis Risk
Shortfall Reserve Fund to the Class II-M-5 Certificates, any Basis
Risk
Shortfall for such Class;
|
|
(17)
|
to
the Basis Risk Shortfall Reserve Fund and then from the Basis Risk
Shortfall Reserve Fund to the Class II-M-6 Certificates, any Basis
Risk
Shortfall for such Class;
|
|
(18)
|
to
the Basis Risk Shortfall Reserve Fund and then from the Basis Risk
Shortfall Reserve Fund to the Class II-M-7 Certificates, any Basis
Risk
Shortfall for such Class;
|
|
(19)
|
to
the Basis Risk Shortfall Reserve Fund and then from the Basis Risk
Shortfall Reserve Fund to the Class II-M-8 Certificates, any Basis
Risk
Shortfall for such Class;
|
|
(20)
|
to
the Supplemental Interest Trust, any Swap Termination Payment owed
to the
Group II Swap Provider in the event of a Swap Provider Trigger Event
and
the Group II Swap Provider is the sole Defaulting Party or the sole
Affected Party (as defined in the ISDA Master Agreement) not paid
on prior
Distribution Dates and to the extent not paid by the Securities
Administrator from any upfront payment received pursuant to any
replacement interest rate swap agreement that may be entered into
by the
Supplemental Interest Trust
Trustee;
|
(21) to
the
Class II-X Certificates, the Class II-X Distribution Amount; and
|
(22)
|
to
the Class II-R Certificates (in respect of the Class R-2C Interest),
any
remaining amount. It is not anticipated that any amounts will be
distributed to the Class II-R Certificates under this clause
(22).
|
Notwithstanding
the foregoing, distributions pursuant to subparagraphs (2) through (19) above
on
any Distribution Date will be made after giving effect to payments received
pursuant to the Group II Swap Agreement.
On
each
Distribution Date, the Securities Administrator, after making the required
distributions of interest and principal to the Certificates as described in
clauses (i) and (ii) above and after the distribution of the Monthly Excess
Cashflow as described in clause (iii) above, will withdraw from the Basis Risk
Shortfall Reserve Fund the amounts on deposit therein and distribute such
amounts to the Group II Senior Certificates and Group II Mezzanine Certificates
in respect of any Basis Risk Shortfalls in the following manner and order of
priority: first, concurrently to the Group II Senior Certificates, on a pro
rata
basis, based on the entitlement of each such Class, the amount of any Basis
Risk
Shortfalls allocated to such Class for such Distribution Date; second, to the
Class II-M-1 Certificates, the amount of any Basis Risk Shortfall allocated
to
such Class for such Distribution Date for such Class; third, to the Class II-M-2
Certificates, the amount of any Basis Risk Shortfall allocated to such Class
for
such Distribution Date for such Class; fourth, to the Class II-M-3 Certificates,
the amount of any Basis Risk Shortfalls allocated to such Class for such
Distribution Date for such Class; fifth, to the Class II-M-4 Certificates,
the
amount of any Basis Risk Shortfalls allocated to such Class for such
Distribution Date; and sixth, to the Class II-M-5 Certificates, the amount
of
any Basis Risk Shortfalls allocated to such Class for such Distribution
Date.
(b) Subject
to Section 10.02 hereof respecting the final distribution on a Class of
Group II Senior Certificates or Group II Mezzanine Certificates, on each
Distribution Date the Securities Administrator shall make distributions to
each
Holder of a Group II Senior Certificate or Group II Mezzanine Certificate of
record on the preceding Record Date either by wire transfer in immediately
available funds to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if (i) such Holder has so notified the
Securities Administrator at least five (5) Business Days prior to the related
Record Date and (ii) such Holder shall hold Regular Certificates with aggregate
principal denominations of not less than $1,000,000 or evidencing a Percentage
Interest aggregating ten percent (10%) or more with respect to such Class or,
if
not, by check mailed by first class mail to such Certificateholder at the
address of such Holder appearing in the Certificate Register. Notwithstanding
the foregoing, but subject to Section 10.02 hereof respecting the final
distribution, distributions with respect to Group II Senior Certificates and
Group II Mezzanine Certificates registered in the name of a Depository shall
be
made to such Depository in immediately available funds.
(c) Any
Group
II Net Swap Payments and Swap Termination Payments (other than Swap Termination
Payments resulting from a Swap Provider Trigger Event) payable by the
Supplemental Interest Trust to the Group II Swap Provider pursuant to the Group
II Swap Agreement shall be deducted from Interest Remittance Amount relating
to
Loan Group II, and to the extent of any such remaining amounts due, from
Principal Remittance Amount, prior to any distributions to the Holders of the
Group II Certificates. On each Distribution Date, such amounts will be remitted
to the Supplemental Interest Trust, first to make any Group II Net Swap Payment
owed to the Group II Swap Provider pursuant to the Group II Swap Agreement
for
such Distribution Date, and second to make any Swap Termination Payment (not
due
to a Swap Provider Trigger Event) owed to the Group II Swap Provider pursuant
to
the Group II Swap Agreement for such Distribution Date. Any Swap Termination
Payment due as a result of the occurrence of a Swap Provider Trigger Event
owed
to the Group II Swap Provider pursuant to the Group II Swap Agreement will
be
subordinated to distributions to the Holders of the Group II Senior Certificates
and Group II Mezzanine Certificates and shall be paid as set forth in clause
(d)
below.
(d) On
each
Distribution Date, the Securities Administrator shall distribute from the
amounts received from the Group II Swap Provider in respect of any Group II
Net
Swap Payment then on deposit in the Supplemental Interest Trust in the following
order of priority:
(i) concurrently,
to the Group II Senior Certificates, pro rata based on amounts due, Current
Interest and any Carryforward Interest for each such Class and Distribution
Date, after giving effect to distributions of such amounts pursuant to
Section 5.05(a)(i)(2);
(ii) sequentially,
to the Class II-M-1, Class II-M-2, Class II-M-3, Class II-M-4, Class II-M-5,
Class II-M-6, Class II-M-7 and Class II-M-8 Certificates, in that order, Current
Interest and any Carryforward Interest for each such Class and Distribution
Date, after giving effect to distributions of such amounts pursuant to Sections
5.05(a)(i)(3) through (10);
(iii) to
the
Holders of the Class or Classes of Group II Offered Certificates then entitled
to receive distributions in respect of principal, in an amount necessary to
maintain or restore the Targeted Overcollateralization Amount after taking
into
account distributions made pursuant to
Section 5.05(a)(iii)(1);
(iv) concurrently
to the Group II Senior Certificates, on a pro rata basis based on the
entitlement of each such Class, and then sequentially to the Class II-M-1,
Class
II-M-2, Class II-M-3, Class II-M-4, Class II-M-5, Class II-M-6, Class II-M-7
and
Class II-M-8 Certificates, in that order, any applicable Deferred Amounts,
prior
to giving effect to amounts available to be paid in respect of Deferred Amounts
pursuant to Section 5.05(a)(iii)(2) through (10);
(v) to
the
Basis Risk Shortfall Reserve Fund and then from the Basis Risk Shortfall Reserve
Fund first, concurrently, to the Group II Senior Certificates, on a pro rata
basis, based on the entitlement of each such Class, and then to the Class
II-M-1, Class II-M-2, Class II-M-3, Class II-M-4, Class II-M-5, Class II-M-6,
Class II-M-7 and Class II-M-8 Certificates, in that order, any applicable Basis
Risk Shortfalls, prior to giving effect to any withdrawals from the Basis Risk
Shortfall Reserve Fund or from amounts available to be paid in respect of Basis
Risk Shortfalls pursuant to Section 5.05(a)(iii)(11) through (19);
and
(vi) to
the
Class II-X Certificates, any remaining amounts.
Notwithstanding
the foregoing, in no instance will such payments (other than payments made
under
clause (vi) above) be made other than to the extent of Realized Losses and
Basis
Risk Shortfalls.
Amounts
payable by the supplemental interest trust to the Securities Administrator
in
respect of Group II Net Swap Payments and Swap Termination Payments other than
Swap Termination Payments resulting from a Swap Provider Trigger Event (and
to
the extent not paid by the Securities Administrator from any upfront payment
received pursuant to any replacement interest rate swap agreement that may
be
entered into by the Supplemental Interest Trust Trustee) in respect of the
Group
II Swap Agreement will be deducted from related available funds before
distributions to the holders of the Group II Offered Certificates. On or before
each Distribution Date, such amounts will be distributed by the trust to the
Securities Administrator, and paid by the Securities Administrator to the Group
II Swap Provider as follows:
(i) first
to
make any Group II Net Swap Payment owed to the Group II Swap Provider pursuant
to the Group II Swap Agreement for such Distribution Date, and
(ii) second
to
make any Swap Termination Payment not due to a Swap Provider Trigger Event
owed
to the Group II Swap Provider pursuant to the Group II Swap Agreement (to the
extent not paid by the Securities Administrator from any upfront payment
received pursuant to any replacement interest rate swap agreement that may
be
entered into by the Securities Administrator).
Section
5.06 Allocation
of Realized Losses on the Group I Mortgage Loans.
(a) On
or
prior to each Determination Date, the Securities Administrator shall determine
the amount of any Realized Loss in respect of each Group I Mortgage Loan that
occurred during the immediately preceding calendar month, based solely on the
reports delivered by the Servicer pursuant to this Agreement.
(b) The
interest portion of Realized Losses shall be allocated to the Group I
Certificates as described in Section 1.02 hereof.
(c) The
principal portion of all Realized Losses on the Group I Mortgage Loans allocated
to any REMIC IA Regular Interest pursuant to Section 5.06(d) shall be
allocated on each Distribution Date as follows: first, in reduction of Group
I
Net Swap Payments payable by the Group I Swap Provider and available for this
purpose, second, in reduction of the Net Monthly Excess Cashflow; third, to
the
Class I-X Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; fourth, to the Class I-M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; fifth, to the Class I-M-2
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; and sixth, to the Class I-M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero. All such Realized Losses
to
be allocated to the Certificate Principal Balances of the Group I Subordinate
Certificates on any Distribution Date shall be so allocated after the actual
distributions to be made on such date as provided above. All references above
to
the Certificate Principal Balance of any Class of Group I Subordinate
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 Group I Subordinate
Certificates, on such Distribution Date.
Any
allocation of the principal portion of Realized Losses to a Group I Mezzanine
Certificate on any Distribution Date shall be made by reducing the Certificate
Principal Balance thereof by the amount so allocated; any allocation of Realized
Losses to the Class I-X Certificates shall be made by reducing the amount
otherwise payable in respect thereof pursuant to Section 5.04(a) clause
Third.
No
allocations of any Realized Losses shall be made to the Certificate Principal
Balances of the Group I Senior Certificates or Class I-P
Certificates.
All
such
Realized Losses and all other losses allocated to a Class of Group I
Certificates hereunder will be allocated among the Certificates of such Class
in
proportion to the Percentage Interests evidenced thereby.
(d) With
respect to the REMIC IA Regular Interests, all Realized Losses on the Group
I Mortgage Loans shall be allocated duplicative on each Distribution Date first,
to REMIC IA Regular Interest I until the Uncertificated Principal Balance
has been reduced to zero, and second, to REMIC I Regular Interest I-1-A through
REMIC IA Regular Interest I-27-B, starting with the lowest numerical
denomination until such REMIC IA Regular Interest has been reduced to zero,
provided that, for REMIC IA Regular Interests with the same numerical
denomination, such Realized Losses shall be allocated pro rata between such
REMIC IA Regular Interests.
The
REMIC IB Marker Allocation Percentage of all Realized Losses on the Group I
Mortgage Loans shall be allocated on each Distribution Date to the following
REMIC IB Regular Interests in the specified percentages, as follows: first,
to Uncertificated Accrued Interest payable to the REMIC IB Regular Interest
LTI-IAA and REMIC IB Regular Interest LTI-IZZ up to an aggregate amount
equal to the REMIC IB Interest Loss Allocation Amount, 98% and 2%,
respectively; second, to the Uncertificated Principal Balances of REMIC IB
Regular Interest LTI-IAA and REMIC IB Regular Interest LTI-IZZ up to an
aggregate amount equal to the REMIC IB Principal Loss Allocation Amount,
98% and 2%, respectively; third, to the Uncertificated Principal Balances of
REMIC IB Regular Interest LTI-IAA, REMIC IB Regular Interest LTI-IM3
and REMIC IB Regular Interest LTI-IZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Principal Balance of REMIC IB Regular Interest LTI-IM3
has been reduced to zero; fourth, to the Uncertificated Principal Balances
of
REMIC IB Regular Interest LTI-IAA, REMIC IB Regular Interest LTI-IM2
and REMIC IB Regular Interest LTI-IZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Principal Balance of REMIC IB Regular Interest LTI-IM2
has been reduced to zero; and fifth, to the Uncertificated Principal Balances
of
REMIC IB Regular Interest LTI-IAA, REMIC IB Regular Interest LTI-IM1
and REMIC IB Regular Interest LTI-IZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Principal Balance of REMIC IB Regular Interest LTI-IM1
has been reduced to zero.
The
REMIC IB SC Allocation Percentage of all Realized Losses on the Group I
Mortgage Loans shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Principal Balance
of
REMIC IB Regular Interest LTI-SC and REMIC IB Regular Interest LTI-NSC
equal to 0.01% of the Certificate Principal Balance of the related Corresponding
Certificates second, any remaining Realized Losses shall be allocated to
REMIC IB Regular Interest LTI-IXX.
(e) Notwithstanding
anything to the contrary contained herein, if on any Distribution Date the
Securities Administrator discovers, based solely on the reports delivered by
the
related Servicer under this Agreement, that any Subsequent Recoveries have
been
collected by the related Servicer with respect to a Group I Mortgage Loan,
the
amount of such Subsequent Recoveries will be applied to increase the Certificate
Principal Balance of the Class of Group I Subordinate Certificates with the
highest payment priority to which Realized Losses have been allocated, but
not
by more than the amount of Realized Losses previously allocated to that Class
of
Group I Mezzanine Certificates pursuant to this Section 5.06. The amount of
any remaining Subsequent Recoveries will be applied to sequentially increase
the
Certificate Principal Balance of the Group I Mezzanine Certificates, beginning
with the Class of Group I Mezzanine Certificates with the next highest payment
priority, up to the amount of such Realized Losses previously allocated to
such
Class of Certificates pursuant to this Section 5.06. Holders of such
Certificates will not be entitled to any payment in respect of current interest
on the amount of such increases for any Accrual Period preceding the
Distribution Date on which such increase occurs. Any such increases shall be
applied to the Certificate Principal Balance of each Group I Subordinate
Certificate of such Class in accordance with its respective Percentage
Interest.
Section
5.07 Allocation
of Realized Losses on the Group II Mortgage Loans.
(a) On
or
prior to each Determination Date, the Securities Administrator shall determine
the amount of any Realized Loss in respect of each Group II Mortgage Loan that
occurred during the immediately preceding calendar month.
(b) The
interest portion of Realized Losses on the Group II Mortgage Loans shall be
allocated to the Certificates as described in Section 1.02
hereof.
The
principal portion of all Realized Losses on the Group II Mortgage Loans shall
be
allocated on each Distribution Date as follows: first,
in
reduction of Group II Net Swap Payments paid by the Group II Swap Provider
under
the Group II Swap Agreement and the Monthly Excess Cashflow for such
Distribution Date; second,
to the
Class II-X Certificates, until the Certificate Principal Balance thereof has
been reduced to zero; third,
to the
Class II-M-8 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero, fourth,
to the
Class II-M-7 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; fifth,
to the
Class II-M-6 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; sixth,
to the
Class II-M-5 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; seventh,
to the
Class II-M-4 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; eighth,
to the
Class II-M-3 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; ninth,
to the
Class II-M-2 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero, and tenth,
to the
Class II-M-1 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero. In addition, once the Group II Mezzanine Certificates
have
been reduced to zero, any additional Realized Losses on the Group II-1 Mortgage
Loans will be allocated to the Class II-1-A Certificates and any additional
Realized Losses on the Group II-2 Mortgage Loans will be allocated concurrently
to the Class II-2-A-1A, Class II-2-A-1B, Class II-2-A-2, Class II-2-A-3, Class
II-2-A-4A and Class II-2-A-4B Certificates, on a pro rata basis, until the
Certificate Principal Balance of each such Class has been reduced to zero;
provided, however, that the pro rata portion of Realized Losses otherwise
allocable to the Class II-2-A-1A Certificates will be allocated first to the
Class II-2-A-1B Certificates, until the Certificate Principal Balance thereof
has been reduced to zero and then, to the Class II-2-A-1A Certificates until
the
Certificate Principal Balance thereof has been reduced to zero; provided
further, that the pro rata portion of Realized Losses otherwise allocable to
the
Class II-2-A-4A Certificates will be allocated first to the Class II-2-A-4B
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero and then, to the Class II-2-A-4A Certificates until the Certificate
Principal Balance thereof has been reduced to zero.
Any
allocation of the principal portion of Realized Losses to a Class of Group
II
Offered Certificates on any Distribution Date shall be made by reducing the
Certificate Principal Balance thereof by the amount so allocated; any allocation
of Realized Losses to a Class II-X Certificate shall be made by reducing the
amount otherwise payable in respect thereof pursuant to
Section 5.05(a)(iii). No allocations of any Realized Losses shall be made
to the Certificate Principal Balances of the Class II-P
Certificates.
All
such
Realized Losses and all other losses allocated to a Class of Certificates
hereunder will be allocated among the Certificates of such Class in proportion
to the Percentage Interests evidenced thereby.
(c) Notwithstanding
anything to the contrary contained herein, if on any Distribution Date the
Securities Administrator discovers, based solely on the reports delivered by
the
related Servicer under this Agreement or the Servicing Agreement, as applicable,
that any Subsequent Recoveries have been collected by such Servicer with respect
to the Group II Mortgage Loans, the amount of such Subsequent Recoveries will
be
applied to increase the Certificate Principal Balance of the Group II
Certificates to which such Realized Losses have been allocated as follows:
first, to the Group II Senior Certificates of the loan group to which the
Subsequent Recovery relates, on a pro rata basis (with respect to the Group
II-2
Senior Certificates), based on the related amount of Applied Loss Amounts
allocated thereto, and then to the Class II-M-1, Class II-M-2, Class II-M-3,
Class II-M-4, Class II-M-5 Class II-M-6, Class II-M-7 and Class II-M-8
Certificates, in that order, in each case up to the related amount of Applied
Loss Amounts but only to the extent that the Certificate Principal Balance
has
not previously been increased due to other Subsequent Recoveries and that any
such Applied Loss Amount has not been paid to such Class of Group II Offered
Certificates as a Deferred Amount with Monthly Excess Cashflow or a Group II
Net
Swap Payment paid by the Group II Swap Provider and available for this purpose.
Holders of such Certificates will not be entitled to any payment in respect
of
current interest on the amount of such increases for any Accrual Period
preceding the Distribution Date on which such increase occurs. Any such
increases shall be applied to the Certificate Principal Balance of each Class
of
Group II Offered Certificates in accordance with its respective Percentage
Interest.
(d) With
respect to the REMIC IIA Regular Interests, all Realized Losses on the Group
II-1 Mortgage Loans shall be allocated shall be allocated on each Distribution
Date first, to REMIC IIA Regular Interest I until the Uncertificated Principal
Balance has been reduced to zero, and second, to REMIC IIA Regular Interest
I-1-A through REMIC IIA Regular Interest I-60-B, starting with the lowest
numerical denomination until such REMIC IIA Regular Interest has been reduced
to
zero, provided that, for REMIC IIA Regular Interests with the same numerical
denomination, such Realized Losses shall be allocated pro rata between such
REMIC IIA Regular Interests. All Realized Losses on the Group II-2 Mortgage
Loans shall be allocated on each Distribution Date first, to REMIC IIA Regular
Interest II until the Uncertificated Principal Balance has been reduced to
zero,
and second, to REMIC IIA Regular Interest II-1-A through REMIC IIA Regular
Interest II-60-B, starting with the lowest numerical denomination until such
REMIC IIA Regular Interest has been reduced to zero, provided that, for REMIC
IIA Regular Interests with the same numerical denomination, such Realized Losses
shall be allocated pro rata between such REMIC IIA Regular Interests.
(e) The
REMIC
IIB Marker Allocation Percentage of all Realized Losses on the Mortgage Loans
shall be allocated on each Distribution Date to the following REMIC IIB Regular
Interests in the specified percentages, as follows: first, to Uncertificated
Accrued Interest payable to the REMIC IIB Regular Interest LTII-IIAA and REMIC
IIB Regular Interest LTII-IIZZ up to an aggregate amount equal to the REMIC
IIB
Interest Loss Allocation Amount, 98% and 2%, respectively; second, to the
Uncertificated Principal Balances of REMIC IIB Regular Interest LTII-IIAA and
REMIC IIB Regular Interest LTII-IIZZ up to an aggregate amount equal to the
REMIC IIB Principal Loss Allocation Amount, 98% and 2%, respectively; third,
to
the Uncertificated Principal Balances of REMIC IIB Regular Interest LTII-IIAA,
REMIC IIB Regular Interest LTII-IIM8 and REMIC IIB Regular Interest LTII-IIZZ,
98%, 1% and 1%, respectively, until the Uncertificated Principal Balance of
REMIC IIB Regular Interest LTII-IIM8 has been reduced to zero; fourth, to the
Uncertificated Principal Balances of REMIC IIB Regular Interest LTII-IIAA,
REMIC
IIB Regular Interest LTII-IIM7 and REMIC IIB Regular Interest LTII-IIZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Principal Balance of REMIC IIB
Regular Interest LTII-IIM7 has been reduced to zero; fifth, to the
Uncertificated Principal Balances of REMIC IIB Regular Interest LTII-IIAA,
REMIC
IIB Regular Interest LTII-IIM6 and REMIC IIB Regular Interest LTII-IIZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Principal Balance of REMIC IIB
Regular Interest LTII-IIM6 has been reduced to zero; sixth, to the
Uncertificated Principal Balances of REMIC IIB Regular Interest LTII-IIAA,
REMIC
IIB Regular Interest LTII-IIM5 and REMIC IIB Regular Interest LTII-IIZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Principal Balance of REMIC IIB
Regular Interest LTII-IIM5 has been reduced to zero; seventh, to the
Uncertificated Principal Balances of REMIC IIB Regular Interest LTII-IIAA,
REMIC
IIB Regular Interest LTII-IIM4 and REMIC IIB Regular Interest LTII-IIZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Principal Balance of REMIC IIB
Regular Interest LTII-IIM4 has been reduced to zero; eighth, to the
Uncertificated Principal Balances of REMIC IIB Regular Interest LTII-IIAA,
REMIC
IIB Regular Interest LTII-IIM3 and REMIC IIB Regular Interest LTII-IIZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Principal Balance of REMIC IIB
Regular Interest LTII-IIM3 has been reduced to zero; ninth, to the
Uncertificated Principal Balances of REMIC IIB Regular Interest LTII-IIAA,
REMIC
IIB Regular Interest LTII-IIM2 and REMIC IIB Regular Interest LTII-IIZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Principal Balance of REMIC IIB
Regular Interest LTII-IIM2 has been reduced to zero; and tenth, to the
Uncertificated Principal Balances of REMIC IIB Regular Interest LTII-IIAA,
REMIC
IIB Regular Interest LTII-IIM1 and REMIC IIB Regular Interest LTII-IIZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Principal Balance of REMIC IIB
Regular Interest LTII-IIM1 has been reduced to zero.
The
REMIC
IIB Sub WAC Allocation Percentage of all Realized Losses on the Group II
Mortgage Loans shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Principal Balance
of
each REMIC IIB Regular Interest ending with the designation “GRP” equal to 0.01%
of the aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group; second, to each REMIC IIB Regular Interest ending with the
designation “SUB,” so that the Uncertificated Balance of each such REMIC IIB
Regular Interest is equal to 0.01% of the excess of (x) the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group over (y)
the
current Certificate Principal Balance of the Senior Certificates in the related
Loan Group (except that if any such excess is a larger number than in the
preceding distribution period, the least amount of Realized Losses shall be
applied to such REMIC IIB Regular Interests such that the REMIC IIB Subordinated
Balance Ratio is maintained); and third, any remaining Realized Losses shall
be
allocated to REMIC IIB Regular Interest LTII-XX.
Section
5.08 Monthly
Statements to Certificateholders.
(a) Not
later
than each Distribution Date, the Securities Administrator shall prepare and
make
available to each Holder of Certificates, the Depositor and the Credit Risk
Manager via its website a statement setting forth the following information
for
the Certificates:
(i) the
Interest Accrual Period and Distribution Date for each Class of
Certificates;
(ii) the
Pass-Through Rate for each Class of Certificates with respect to the current
Accrual Period;
(iii) with
respect to each Loan Group, the total cash flows received and the general
sources thereof;
(iv) the
amount of the related distribution to Holders of each Class allocable to
principal, separately identifying (A) the aggregate amount of any Principal
Prepayments included therein, (B) the aggregate of all scheduled payments of
principal included therein, (C) the amount of Prepayment Charges distributed
to
the Class I-P Certificates and Class II-P Certificates, (D) the Extra Principal
Distribution Amount and (E) the Monthly Excess Interest with respect to the
Group II Certificates, if any;
(v) the
amount distributed to Holders of each Class on such Distribution Date allocable
to interest;
(vi) the
Certificate Principal Balance or Certificate Notional Balance of each Class
of
Certificates, if applicable, after giving effect (i) to all distributions
allocable to principal on such Distribution Date and (ii) the allocation of
any
Realized Losses for such Distribution Date;
(vii) the
aggregate amount of P&I Advances included in the distributions on the
Distribution Date;
(viii) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(ix) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments by the related Servicer pursuant
to
Section 3.27 of this Agreement or the Servicing Agreement, as applicable or
the Master Servicer pursuant to Section 4.14 of this
Agreement;
(x) the
cumulative amount of Realized Losses for the Group I Mortgage Loans and the
Group II Mortgage Loans to date and, in addition, if the Certificate Principal
Balance of any Class of Certificates have been reduced to zero, the cumulative
amount of any Realized Losses that have not been allocated to any Class of
Certificates;
(xi) with
respect to Loan Group I, the Group I Overcollateralization Amount, the Credit
Enhancement Percentage, any Overcollateralization Increase Amount and any
Overcollateralization Reduction Amount for such Distribution Date;
(xii) with
respect to Loan Group II, the Group II Overcollateralization Amount, the Senior
Enhancement Percentage, any Overcollateralization Deficiency Amount and any
Overcollateralization Release Amount for such Distribution Date;
(xiii) with
respect to each Loan Group, the amount of any Prepayment Charges remitted by
the
related Servicer;
(xiv) 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;
(xv) with
respect to each Loan Group, the number and Scheduled Principal Balance of all
the Mortgage Loans for the following Distribution Date;
(xvi) the
number and aggregate principal balance of any Mortgage Loans that were (A)
delinquent (exclusive of Mortgage Loans in foreclosure) using the “OTS” method
(1) one scheduled payment is delinquent, (2) two scheduled payments are
delinquent, (3) three scheduled payments are delinquent and (4) foreclosure
proceedings have been commenced, and loss information for the period; the number
and aggregate principal balance of any Mortgage Loans in respect of which (A)
one scheduled payment is delinquent, (B) two scheduled payments are delinquent,
(C) three or more scheduled payments are delinquent and (D) foreclosure
proceedings have been commenced, and loss information for the
period;
(xvii) with
respect to any Mortgage Loan that was liquidated during the preceding calendar
month, the loan number and the Stated Principal Balance of, and Realized Loss
on, such Mortgage Loan as of the close of business on the Determination Date
preceding such Distribution Date;
(xviii) the
total
number and principal balance of any real estate owned or REO Properties in
each
Loan Group and the Mortgage Loans in the aggregate as of the close of business
on the Determination Date preceding such Distribution Date;
(xix) the
three
month rolling average of the percent equivalent of a fraction, the numerator
of
which is the aggregate scheduled principal balance of the Group I Mortgage
Loans
or Group II Mortgage Loans that are sixty (60) days or more delinquent or are
in
bankruptcy or foreclosure or are REO Properties, and the denominator of which
is
the scheduled principal balances of all of the Group I Mortgage Loans or Group
II Mortgage Loans, as applicable as of the last day of such Distribution Date;
(xx) the
aggregate Stated Principal Balance, for each of the Group I Mortgage Loans
and
Group II Mortgage Loans that are sixty (60) days or more delinquent or are
in
bankruptcy or foreclosure or are REO properties;
(xxi) the
aggregate Servicing Fee received by the Servicers, and the master servicing
fees, if any, received by the Master Servicer during the related Due
Period;
(xxii) the
amount, if any, of other fees or expenses accrued and paid, with an
identification of the payee and the general purpose of such fees;
(xxiii) with
respect to the Group I Certificates, the amount of any Net WAC Rate Carryover
Amounts and the amount in the Net
WAC
Reserve Fund after
all
deposits and withdrawals on such Distribution Date;
(xxiv) with
respect to the Group II Certificates the amount of any Basis Risk Shortfalls
and
the amount in the Basis Risk Shortfall Reserve Fund after all deposits and
withdrawals on such Distribution Date;
(xxv) amounts
payable in respect of each Cap Contract;
(xxvi) amounts
payable in respect of each Swap Agreement;
(xxvii) with
respect to Loan Group I, whether the Group I Stepdown Date has occurred and
whether any Group I Trigger Event is in effect; and
(xxviii)
with
respect to Loan Group II, whether the Group II Group II Stepdown Date has
occurred and whether any Group II Group II Trigger Event is in
effect.
The
Securities Administrator may make the foregoing monthly statement (and, at
its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders via the Securities
Administrator’s internet website. The Securities Administrator’s internet
website shall initially be located at “xxx.xxxxxxx.xxx”. Assistance in using the
website can be obtained by calling the Securities Administrator’s customer
service desk at (000) 000-0000. Parties that are unable to use the above
distribution options are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The
Securities Administrator may change the way monthly statements are distributed
in order to make such distributions more convenient or more accessible to the
above parties.
The
Securities Administrator shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing such statement and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(b) The
Securities Administrator’s responsibility for making the above information
available to the Certificateholders is limited to the availability, timeliness
and accuracy of the information provided by the Servicers, the Cap Provider
and
the Swap Providers. The Securities Administrator will make available a copy
of
each statement provided pursuant to this Section 5.08 to each Rating
Agency.
(c) Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall cause to be furnished upon written request to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i) and (a)(ii) of this
Section 5.08 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time
in
effect.
(d) Upon
filing with the Internal Revenue Service, the Securities Administrator shall
furnish to the Holders of the Residual Certificates the applicable Form 1066
and
each applicable Form 1066Q and shall respond promptly to written requests made
not more frequently than quarterly by any Holder of a Residual Certificate
with
respect to the following matters:
(i) The
original projected principal and interest cash flows on the Closing Date on
each
Class of regular and residual interests created hereunder and on the Mortgage
Loans, based on the Prepayment Assumption;
(ii) The
projected remaining principal and interest cash flows as of the end of any
calendar quarter with respect to each Class of regular and residual interests
created hereunder and the Mortgage Loans, based on the Prepayment
Assumption;
(iii) The
applicable Prepayment Assumption and any interest rate assumptions used in
determining the projected principal and interest cash flows described
above;
(iv) The
original issue discount (or, in the case of the Mortgage Loans, market discount)
or premium accrued or amortized through the end of such calendar quarter with
respect to each Class of regular or residual interests created hereunder and
to
the Mortgage Loans, together with each constant yield to maturity used in
computing the same;
(v) The
treatment of losses realized with respect to the Mortgage Loans or the regular
interests created hereunder, including the timing and amount of any cancellation
of indebtedness income of a REMIC with respect to such regular interests or
bad
debt deductions claimed with respect to the Mortgage Loans;
(vi) The
amount and timing of any non-interest expenses of a REMIC; and
(vii) Any
taxes
(including penalties and interest) imposed on the REMIC, including, without
limitation, taxes on “prohibited transactions,” “contributions” or “net income
from foreclosure property” or state or local income or franchise
taxes.
The
information pursuant to clauses (i), (ii), (iii) and (iv) above shall be
provided by the Depositor pursuant to Section 9.13.
Section
5.09 REMIC
Designations and REMIC Allocations.
(a) The
Securities Administrator shall elect that each of REMIC IA, REMIC IB,
REMIC IC, REMIC ID, REMIC IE, REMIC IF, REMIC IIA, REMIC IIB, REMIC IIC, REMIC
IID, REMIC IIE and REMIC IIF shall be treated as a REMIC under Section 860D
of the Code. Any inconsistencies or ambiguities in this Agreement or in the
administration of this Agreement shall be resolved in a manner that preserves
the validity of such REMIC elections. The REMIC IA Regular Interests shall
constitute the assets of REMIC IB. The
REMIC IB Regular Interests shall constitute the assets of REMIC IC. The
Class I-X Interest shall constitute the assets of REMIC ID. The Class I-P
Interest shall constitute the assets of REMIC IE. The Class I-IO Interest shall
constitute the assets of REMIC IF. The
REMIC
IIA Regular Interests shall constitute the assets of REMIC IIB. The REMIC IIB
Regular Interests shall constitute the assets of REMIC IIC. The Class II-X
Interest shall constitute the assets of REMIC IID. The Class II-P Interest
shall
constitute the assets of REMIC IIE. The Class II-IO Interest shall constitute
the assets of REMIC IIF.
(b) On
each
Distribution Date, the Available Distribution Amount with respect to Loan Group
I, in the following order of priority and in accordance with the Remittance
Reports, shall be distributed by REMIC IA to REMIC IB on account of
the REMIC IA Regular Interests or withdrawn from the sub-account of the
Distribution Account relating to Loan Group I and distributed to the Holders
of
the Class I-R Certificates (in respect of the Class R-1A Interest), as the
case
may be:
(i) to
Holders of each of REMIC IA Regular Interest I and REMIC IA Regular
Interest I-1-A through I-27-B, pro rata, in an amount equal to (A) the
Uncertificated Accrued Interest for such REMIC IA Regular Interests for
such Distribution Date, plus (B) any amounts payable in respect thereof
remaining unpaid from previous Distribution Dates;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, payments of principal shall be allocated to REMIC I Regular Interest
I,
then to REMIC IA Regular Interests I-1-A through I-27-B starting with the
lowest numerical denomination until the Uncertificated Principal Balance of
each
such REMIC IA Regular Interest is reduced to zero; and
(iii) to
the
Holders of REMIC IA Regular Interest I-P, (A) on each Distribution Date,
100% of the amount paid in respect of Prepayment Charges and (B) on the
Distribution Date in January, 2012 until $100 has been distributed pursuant
to
this clause.
(c) On
each
Distribution Date, the following amounts, in the following order of priority
and
in accordance with the Remittance Report, shall be distributed by REMIC IB
to REMIC IC on account of the REMIC IB Regular Interests or withdrawn from
the Distribution Account and distributed to the Holders of the Class R-1B
Interest, as the case may be:
(i) first,
to
the Holder of REMIC IB Regular Interest LTI-I-IO in an amount equal to (A)
the Uncertificated Accrued Interest for each such REMIC IB Regular Interest
for such Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from previous Distribution Dates and then to the Holders of REMIC IB
Regular Interest LTI-AA, REMIC IB Regular Interest LTI-IA1, REMIC IB
Regular Interest LTI-IA2, REMIC IB Regular Interest LIT-IA3, REMIC IB
Regular Interest LTI-IA4, REMIC IB Regular Interest LTI-IM1, REMIC IB
Regular Interest LTI-IM2, REMIC IB Regular Interest LTI-IM3 and
REMIC IB Regular Interest LTI-IZZ, pro rata, in an amount equal to (A) the
Uncertificated Accrued Interest for each such REMIC IB Regular Interest for
such Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from previous Distribution Dates. Amounts payable as Uncertificated Accrued
Interest in respect of REMIC IB Regular Interest LTI-IZZ shall be reduced
and deferred when the REMIC IB Overcollateralization Amount is less than
the REMIC IB Required Overcollateralization Amount, by the lesser of (x)
the amount of such difference and (y) the REMIC IB Regular Interest LTI-IZZ
Maximum Interest Deferral Amount and such amount will be payable to the Holders
of REMIC IB Regular Interest LTI-IA1, REMIC IB Regular Interest
LTI-IA2, REMIC IB Regular Interest LIT-IA3, REMIC IB Regular Interest
LTI-IA4, REMIC IB Regular Interest LTI-IM1, REMIC IB Regular Interest
LTI-IM2 and REMIC IB Regular Interest LTI-IM3, in the same proportion as
the Overcollateralization Deficiency is allocated to the Corresponding
Certificates and the Uncertificated Principal Balance of REMIC IB Regular
Interest LTI-IZZ shall be increased by such amount;
(ii) second,
to the Holders of REMIC IB Regular Interests, in an amount equal to the
remainder of the REMIC IB Marker Allocation Percentage of the Interest
Remittance Amount and the Principal Payment Amount for such Distribution Date
after the distributions made pursuant to clause (i) above, allocated as
follows:
(A) 98.00%
of
such remainder (other than amounts payable under clause (C) below) to the
Holders of REMIC IB Regular Interest LTI-AA and REMIC IB Regular
Interest LTI-IP, until the Uncertificated Principal Balance of such
REMIC IB Regular Interest is reduced to zero, provided, however, that the
Uncertificated Principal Balance of REMIC IB Regular Interest LTI-IP shall
not be reduced until the Distribution Date in January 2012 or any Distribution
Date thereafter, at which point such amount shall be distributed to
REMIC IB Regular Interest LTI-IP, until $100 has been distributed pursuant
to this clause;
(B) 2.00%
of
such remainder, first, to the Holders REMIC IB Regular Interest LTI-IA1,
REMIC IB Regular Interest LTI-IA2, REMIC IB Regular Interest LIT-IA3,
REMIC IB Regular Interest LTI-IA4, REMIC IB Regular Interest LTI-IM1,
REMIC IB Regular Interest LTI-IM2 and REMIC IB Regular Interest
LTI-IM3, 1% in the same proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Principal Balances of
such
REMIC IB Regular Interests are reduced to zero and second, to the Holders
of REMIC IB Regular Interest LTI-IZZ (other than amounts payable under the
proviso below), until the Uncertificated Principal Balance of such REMIC IB
Regular Interest is reduced to zero; and
(C) any
remaining amount to the Holders of the Class I-R Certificates (in respect of
the
Class R-1B Interest).
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to a Group I Overcollateralization Release Amount shall be
allocated to Holders of (i) REMIC IB Regular Interest LTI-AA and
REMIC IB Regular Interest LT-IP, in that order and (ii) REMIC IB
Regular Interest LTI-IZZ, respectively; provided that REMIC IB Regular
Interest LT-IP shall not be reduced until the Distribution Date in January
2012,
at which point such amount shall be distributed to REMIC IB Regular
Interest LT-IP, until $100 has been distributed pursuant to this
clause.
(iii) third,
to
the Holders of REMIC IB Regular Interest LTI-SC, REMIC IB Regular
Interest LTI-NSC and REMIC I Regular Interest LTI-XX, pro rata, in an amount
equal to (A) the Uncertificated Accrued Interest for each such REMIC IB
Regular Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates; and
(iv) fourth,
to the Holders of REMIC IB Regular Interests, in an amount equal to the
remainder of the REMIC IB SC Allocation Percentage of the Group I Interest
Remittance Amount and the Group I Principal Payment Amount for such Distribution
Date after the distributions made pursuant to clause (iii) above, such that
distributions of principal shall be deemed to be made to the REMIC IB
Regular Interests first, so as to keep the Uncertificated Principal Balance
of
REMIC IB Regular Interest LTI-SC and REMIC IB Regular Interest LTI-NSC
equal to 0.01% of the aggregate Certificate Principal Balance of the related
Corresponding Certificates; second, any remaining principal to REMIC IB
Regular Interest LTI-XX.
(v) all
amounts paid to the Class I-X Certificates shall be deemed to be distributed
to
the Class I-X Interest;
(vi) all
amounts paid to the Class I-P Certificates shall be deemed to be distributed
to
the Class I-P Interest; and
(vii) all
amounts paid to REMIC IF Regular Interest Swap-IO shall be deemed to be
distributed to the Class I-IO Interest.
(d) On
each
Distribution Date, the following amounts, in the following order of priority
and
in accordance with the Remittance Reports, shall be distributed by REMIC IIA
to
REMIC IIB on account of the REMIC IIA Regular Interests or withdrawn from the
related Distribution Account and distributed to the Holders of the Class R-2A
Interest, as the case may be:
(e) On
each
Distribution Date, the following amounts, in the following order of priority
and
in accordance with the Remittance Report, shall be distributed by REMIC IIA
to
REMIC IIB on account of the REMIC II Group II-1 Regular Interests or withdrawn
from the Distribution Account and distributed to the Holders of the Class R-IIA
Interest, as the case may be:
(i) to
Holders of each of REMIC IIA Regular Interest I and REMIC IIA Regular Interest
I-1-A through I-60-B, pro rata, in an amount equal to (A) the Uncertificated
Accrued Interest for such REMIC IIA Regular Interests for such Distribution
Date, plus (B) any amounts payable in respect thereof remaining unpaid from
previous Distribution Dates;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, payments of principal shall be allocated to REMIC IIA Regular Interest
I,
then to REMIC IIA Regular Interests I-1-A through I-60-B starting with the
lowest numerical denomination until the Uncertificated Principal Balance of
each
such REMIC IIA Regular Interest is reduced to zero, provided that, for REMIC
IIA
Regular Interests with the same numerical denomination, such payments of
principal shall be allocated pro rata between such REMIC IIA Regular Interests;
and
(iii) to
the
Holders of REMIC IIA Regular Interest II-P, (A) on each Distribution Date,
100%
of the amount paid in respect of Prepayment Charges on the Group II Mortgage
Loans and (B) on the Distribution Date in January,
2012
until $100 has been distributed pursuant to this clause.
(f) On
each
Distribution Date, the following amounts, in the following order of priority
and
in accordance with the Remittance Report, shall be distributed by REMIC IIA
to
REMIC IIB on account of the REMIC IIA Group II-2 Regular Interests or withdrawn
from the Distribution Account and distributed to the Holders of the Class R-2A
Interest, as the case may be:
(i) to
Holders of each of REMIC IIA Regular Interest II and REMIC IIA Regular Interest
II-1-A through II-60-B, pro rata, in an amount equal to (A) Uncertificated
Accrued Interest for such REMIC IIA Regular Interests for such Distribution
Date, plus (B) any amounts payable in respect thereof remaining unpaid from
previous Distribution Dates;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, payments of principal shall be allocated as follows: to REMIC IIA Regular
Interest II, then to REMIC IIA Regular interests II-1-A through II-60-B starting
with the lowest numerical denomination until the Uncertificated Principal
Balance of each such REMIC II Regular Interest is reduced to zero, provided
that, for REMIC IIA Regular Interests with the same numerical denomination,
such
payments of principal shall be allocated pro rata between such REMIC IIA Regular
Interests.
(g) On
each
Distribution Date, the following amounts, in the following order of priority
and
in accordance with the Remittance Report, shall be distributed by REMIC IIB
to
REMIC IIC on account of the REMIC IIB Regular Interests or withdrawn from the
Distribution Account and distributed to the Holders of the Class R-2B Interest,
as the case may be:
(i) first,
to
the Holder of REMIC IIB Regular Interest LTII-II-IO in an amount equal to (A)
the Uncertificated Accrued Interest for each such REMIC IIB Regular Interest
for
such Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from previous Distribution Dates and then to the Holders of REMIC IIB Regular
Interest LTII-IIAA, REMIC IIB Regular Interest LTII-IA1, REMIC IIB Regular
Interest LTII-IIA1A, REMIC IIB Regular Interest LTII-IIA1B, REMIC IIB Regular
Interest LTII-IIA2, REMIC IIB Regular Interest LTII-IIA3, REMIC IIB Regular
Interest LTII-IIA4A, REMIC IIB Regular Interest LTII-IIA4B, REMIC IIB Regular
Interest LTII-IIM1, REMIC IIB Regular Interest LTII-IIM2, REMIC IIB Regular
Interest LTII-IIM3, REMIC IIB Regular Interest LTII-IIM4, REMIC IIB Regular
Interest LTII-IIM5, REMIC IIB Regular Interest LTII-IIM6, REMIC IIB Regular
Interest LTII-IIM7, REMIC IIB Regular Interest LTII-IIM8 and REMIC IIB Regular
Interest LTII-IIZZ, pro rata, in an amount equal to (A) the Uncertificated
Accrued Interest for each such REMIC IIB Regular Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates. Amounts payable as Uncertificated Accrued Interest in
respect of REMIC IIB Regular Interest LTII-IIZZ shall be reduced and deferred
when the REMIC IIB Overcollateralization Amount is less than the REMIC IIB
Targeted Overcollateralization Amount, by the lesser of (x) the amount of such
difference and (y) the REMIC IIB Regular Interest LTII-IIZZ Maximum Interest
Deferral Amount and such amount will be payable to the Holders of REMIC IIB
Regular Interest LTII-IA1, REMIC IIB Regular Interest LTII-IIA1A, REMIC IIB
Regular Interest LTII-IIA1B, REMIC IIB Regular Interest LTII-IIA2, REMIC IIB
Regular Interest LTII-IIA3, REMIC IIB Regular Interest LTII-IIA4A, REMIC IIB
Regular Interest LTII-IIA4B, REMIC IIB Regular Interest LTII-IIM1, REMIC IIB
Regular Interest LTII-IIM2, REMIC IIB Regular Interest LTII-IIM3, REMIC IIB
Regular Interest LTII-IIM4, REMIC IIB Regular Interest LTII-IIM5, REMIC IIB
Regular Interest LTII-IIM6, REMIC IIB Regular Interest LTII-IIM7 and REMIC
IIB
Regular Interest LTII-IIM8 in the same proportion as the Overcollateralization
Deficiency is allocated to the Corresponding Certificates and the Uncertificated
Principal Balance of REMIC IIB Regular Interest LTII-IIZZ shall be increased
by
such amount;
(ii) second,
to the Holders of REMIC IIB Regular Interests, in an amount equal to the
remainder of the REMIC IIB Marker Allocation Percentage of the Interest
Remittance Amount and the Principal Payment Amount for such Distribution Date
after the distributions made pursuant to clause (i) above, allocated as
follows:
(A) 98.00%
of
such remainder (other than amounts payable under clause (C) below) to the
Holders of REMIC IIB Regular Interest LTII-IIAA and REMIC IIB Regular Interest
LTII-IIP, until the Uncertificated Principal Balance of such REMIC IIB Regular
Interest is reduced to zero, provided, however, that the Uncertificated
Principal Balance of REMIC IIB Regular Interest LTII-IIP shall not be reduced
until the Distribution Date in January, 2012 or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC IIB Regular
Interest LTII-IIP, until $100 has been distributed pursuant to this
clause;
(B) 2.00%
of
such remainder, first, to the Holders REMIC IIB Regular Interest LTII-IA1,
REMIC
IIB Regular Interest LTII-IIA1A, REMIC IIB Regular Interest LTII-IIA1B, REMIC
IIB Regular Interest LTII-IIA2, REMIC IIB Regular Interest LTII-IIA3, REMIC
IIB
Regular Interest LTII-IIA4A, REMIC IIB Regular Interest LTII-IIA4B, REMIC IIB
Regular Interest LTII-IIM1, REMIC IIB Regular Interest LTII-IIM2, REMIC IIB
Regular Interest LTII-IIM3, REMIC IIB Regular Interest LTII-IIM4, REMIC IIB
Regular Interest LTII-IIM5, REMIC IIB Regular Interest LTII-IIM6, REMIC IIB
Regular Interest LTII-IIM7 and REMIC IIB Regular Interest LTII-IIM8, 1% in
the
same proportion as principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Principal Balances of such REMIC IIB
Regular Interests are reduced to zero and second, to the Holders of REMIC IIB
Regular Interest LTII-IIZZ (other than amounts payable under the proviso below),
until the Uncertificated Principal Balance of such REMIC IIB Regular Interest
is
reduced to zero; and
(C) any
remaining amount to the Holders of the Class II-R Certificates (in respect
of
the Class R-2B Interest).
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Group II Overcollateralization Release Amount shall be
allocated to Holders of (i) REMIC IIB Regular Interest LTII-IIAA and REMIC
IIB
Regular Interest LTII-IIP, in that order and (ii) REMIC IIB Regular Interest
LTII-IIZZ, respectively; provided that REMIC IIB Regular Interest LTII-IIP
shall
not be reduced until the Distribution Date in January, 2012, at which point
such
amount shall be distributed to REMIC IIB Regular Interest LTII-IIP, until $100
has been distributed pursuant to this clause.
(iii) third,
to
the Holders of REMIC IIB Regular Interest LTII-1SUB, REMIC IIB Regular Interest
LTII-1GRP, REMIC IIB Regular Interest LTII-2SUB, REMIC IIB Regular Interest
LTII-2GRP and REMIC IIB Regular Interest LTII-XX, pro rata, in an amount equal
to (A) the Uncertificated Accrued Interest for each such REMIC IIB Regular
Interest for such Distribution Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Distribution Dates;
(iv) fourth,
to the Holders of REMIC IIB Regular Interests, in an amount equal to the
remainder of the REMIC IIB Sub WAC Allocation Percentage of the Interest
Remittance Amount and the Principal Payment Amount for such Distribution Date
after the distributions made pursuant to clause (iii) above, such that
distributions of principal shall be deemed to be made to the REMIC IIB Regular
Interests first, so as to keep the Uncertificated Principal Balance of each
REMIC IIB Regular Interest ending with the designation “GRP” equal to 0.01% of
the aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan
Group; second, to each REMIC IIB Regular Interest ending with the designation
“SUB,” so that the Uncertificated Principal Balance of each such REMIC IIB
Regular Interest is equal to 0.01% of the excess of (x) the aggregate Stated
Principal Balance of the Group II Mortgage Loans in the related Loan Group
over
(y) the current Certificate Principal Balance of the Senior Certificates in
the
related Loan Group (except that if any such excess is a larger number than
in
the preceding distribution period, the least amount of principal shall be
distributed to such REMIC IIB Regular Interests such that the REMIC IIB
Subordinated Balance Ratio is maintained); and third, any remaining principal
to
REMIC IIB Regular Interest LTII-XX;
(v) all
amounts paid to the Class II-X Certificates shall be deemed to be distributed
to
the Class II-X Interest;
(vi) all
amounts paid to the Class II-P Certificates shall be deemed to be distributed
to
the Class II-P Interest; and
(vii) all
amounts paid to REMIC IIF Regular Interest IO shall be deemed to be distributed
to the Class II-IO Interest.
Section
5.10 Prepayment
Charges.
(a) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Group I Mortgage Loans received during the related Prepayment Period and
deposited in the sub-account of the Distribution Account related to the Group
I
Mortgage Loans will be withdrawn from such sub-account of the Distribution
Account and distributed by the Securities Administrator in accordance with
the
Remittance Reports to the Class I-P Certificates and shall not be available
for
distribution to the holders of any other Class of Certificates. The payment
of
such Prepayment Charges shall not reduce the Certificate Principal Balance
of
the Class I-P Certificates.
(b) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Group II Mortgage Loans received during the related Prepayment Period and
deposited in the sub-account of the Distribution Account related to the Group
II
Mortgage Loans will be withdrawn from such sub-account of the Distribution
Account and distributed by the Securities Administrator in accordance with
the
Remittance Reports to the Class II-P Certificates and shall not be available
for
distribution to the holders of any other Class of Certificates. The payment
of
such Prepayment Charges shall not reduce the Certificate Principal Balance
of
the Class II-P Certificates.
(c) The
Master Servicer shall not be obligated to recalculate or verify Prepayment
Charges collected by the Servicer and remitted to the Distribution Account
for
distribution to the related Certificateholders.
Section
5.11 Class
I-P Certificate Account and the Class II-P Certificate Account.
(a) The
Securities Administrator shall establish and maintain with itself a separate,
segregated trust account titled “Xxxxx Fargo Bank, N.A., for the benefit of
Nomura Home Equity Loan, Inc., Alternative Loan Trust 2007-1 Class I-P
Certificate Account”. On the Closing Date, the Depositor will deposit, or cause
to be deposited in the Class I-P Certificate Account $100.00. The amount on
deposit in the Class I-P Certificate Account shall be held uninvested. On the
January 2012 Distribution Date, the Securities Administrator shall withdraw
the
amount on deposit in the Class I-P Certificate Account and remit such amount
to
the Holders of the Class I-P Certificates, in reduction of the Certificate
Principal Balance thereof.
(b) The
Securities Administrator shall establish and maintain with itself a separate,
segregated trust account titled “Xxxxx Fargo Bank, N.A., for the benefit of
Nomura Home Equity Loan, Inc., Alternative Loan Trust 2007-1 Class II-P
Certificate Account”. On the Closing Date, the Depositor will deposit, or cause
to be deposited in the Class II-P Certificate Account $100.00. The amount on
deposit in the Class II-P Certificate Account shall be held uninvested. On
the
January 2012 Distribution Date, the Securities Administrator shall withdraw
the
amount on deposit in the Class II-P Certificate Account and remit such amount
to
the Holders of the Class II-P Certificates, in reduction of the Certificate
Principal Balance thereof.
Section
5.12 Net
WAC Reserve Fund.
(a) The
Securities Administrator shall establish a Net WAC Reserve Fund on behalf of
the
holders of the Group I Senior Certificates and Group I Subordinate Certificates.
The Net WAC Reserve Fund must be an Eligible Account. The Net WAC Reserve Fund
shall be entitled “Net WAC Reserve Fund, Xxxxx Fargo Bank, National Association
for the benefit of holders of Nomura Home Equity Loan, Inc., Asset-Backed
Certificates, Series 2007-1, Class I-A-1, Class I-A-2, Class I-A-3, Class I-A-4,
Class I-A-5, Class I-A-6, Class I-M-1, Class I-M-2 and Class I-M-3”. Any
payments received by the Securities Administrator under the Class I-A-4 Cap
Contract shall be deposited into the Net WAC Reserve Fund for the benefit of
the
Class I-A-4 Certificates and any payments received by the Securities
Administrator under the Class I-M-3 Cap Contract shall be deposited into the
Net
WAC Reserve Fund for the benefit of the Class I-M-3 Certificates; provided
that
the amount of any Excess Cap Payments shall be held for the benefit of the
Class
I-X Certificates and payable as part of the Class I-X Distribution Amount for
the related Distribution Date. On the Closing Date, the Depositor will deposit,
or cause to be deposited, into the Net WAC Reserve Fund $1,000. On each
Distribution Date as to which there is a Net WAC Rate Carryover Amount payable
to any Class of Group I Certificates, the Securities Administrator shall deposit
the amounts pursuant to paragraph 3 of clause Third
of
Section 5.04(a) into the Net WAC Reserve Fund and the Securities
Administrator has been directed by the Class I-X Certificateholder to distribute
such amounts to the Holders of the Group I Senior Certificates and Group I
Subordinate Certificates in the amounts and priorities set forth in clause
Third
of
Section 5.04(a).
(b) The
Net
WAC Reserve Fund is an “outside reserve fund” within the meaning of Treasury
Regulation §1.860G-2(h) and shall be an asset of the Trust Fund but not an asset
of any REMIC. The Securities Administrator on behalf of the Trust Fund shall
be
the nominal owner of the Net WAC Reserve Fund. The Class I-X Certificateholders
shall be the beneficial owners of the Net WAC Reserve Fund, subject to the
power
of the Securities Administrator to transfer amounts under Section 5.04(a).
Amounts in the Net WAC Reserve Fund shall be held either uninvested in a trust
or deposit account of the Securities Administrator with no liability for
interest or other compensation thereof or, at the written direction of the
Majority Class I-X Certificateholder, be invested in Permitted Investments
that
mature no later than the Business Day prior to the next succeeding Distribution
Date. All net income and gain from such investments shall be distributed to
the
Majority Class I-X Certificateholder, not as a distribution in respect of any
interest in any REMIC (pursuant to Section 5.10(d)). All amounts earned on
amounts on deposit in the Net WAC Reserve Fund shall be taxable to the Majority
Class I-X Certificateholder. Any losses on such investments shall be deposited
in the Net WAC Reserve Fund by the Majority Class I-X Certificateholder out
of
its own funds immediately as realized. In the event that the Majority Class
I-X
Certificateholder shall fail to provide investment instructions to the
Securities Administrator, the amounts on deposit in the Net WAC Reserve Fund
shall be held uninvested.
(c) For
federal tax return and information reporting, the value of the right of the
Holder of the Class I-A-4 Certificates and the Class I-M-3 Certificates to
receive payments from the Net WAC Reserve Fund is equal to $373,000 and $83,000,
respectively, and the amount allocated to the right of the holders of the Group
I Senior Certificates (other than the Class I-A-4 Certificates) and Group I
Subordinate Certificates (other than the Class I-M-3 Certificates) to receive
payments from the Net WAC Reserve Fund in respect of any Net WAC Rate Carryover
Amount shall be zero.
Section
5.13 Basis
Risk Shortfall Reserve Fund.
(a) The
Securities Administrator shall establish a Basis Risk Shortfall Reserve Fund
on
behalf of the holders of the Group II Senior Certificates and the Mezzanine
Certificates. The Basis Risk Shortfall Reserve Fund must be an Eligible Account.
The
Basis
Risk Shortfall Reserve Fund shall be entitled “Basis Risk Shortfall Reserve
Fund, Xxxxx Fargo Bank, N.A., for the benefit of holders of Nomura Home Equity
Loan, Inc., Asset-Backed Certificates, Series 2007-1, Class II-A-1, Class
II-A-2, Class II-M-1, Class II-M-2, Class II-M-3, Class II-M-4 and Class II-M-5
Certificates.
On the
Closing Date, the Depositor will deposit, or cause to be deposited, into the
Basis Risk Shortfall Reserve Fund $1,000. On each Distribution Date as to which
there is a Basis Risk Shortfall payable to any Class of Certificates, the
Securities Administrator shall deposit the amounts pursuant to paragraphs (11)
through (19) of Section 5.05(a)(iii) into the Basis Risk Shortfall Reserve
Fund and the Securities Administrator has been directed by the Class II-X
Certificateholder to distribute such amounts to the Holders of the Group II
Senior Certificates and Mezzanine Certificates in the amounts and priorities
set
forth in Section 5.05(a)(iii).
(b) The
Basis
Risk Shortfall Reserve Fund is an “outside reserve fund” within the meaning of
Treasury Regulation §1.860G-2(h) and shall be an asset of the Trust Fund but not
an asset of any REMIC. The Securities Administrator on behalf of the Trust
shall
be the nominal owner of the Basis Risk Shortfall Reserve Fund. The Class II-X
Certificateholders shall be the beneficial owners of the Basis Risk Shortfall
Reserve Fund, subject to the power of the Securities Administrator to transfer
amounts under Section 5.05(a)(iii). Amounts in the Basis Risk Shortfall
Reserve Fund shall be held either uninvested in a trust or deposit account
of
the Securities Administrator with no liability for interest or other
compensation thereof or, at the written direction of the Majority Class II-X
Certificateholder, be invested in Permitted Investments that mature no later
than the Business Day prior to the next succeeding Distribution Date. All net
income and gain from such investments shall be distributed to the Majority
Class
II-X Certificateholder, not as a distribution in respect of any interest in
any
REMIC, on such Distribution Date. All amounts earned on amounts on deposit
in
the Basis Risk Shortfall Reserve Fund shall be taxable to the Majority Class
II-X Certificateholder. Any losses on such investments shall be deposited in
the
Basis Risk Shortfall Reserve Fund by the Majority Class II-X Certificateholder
out of its own funds immediately as realized. In the event that the Majority
Class II-X Certificateholder shall fail to provide investment instructions
to
the Securities Administrator, the amounts on deposit in the Basis Risk Shortfall
Reserve Fund shall be held uninvested.
(c) For
federal tax return and information reporting, the value of the right of the
holders of the Group II Senior Certificates and Mezzanine
Certificates
to
receive payments from the Basis Risk Shortfall Reserve Fund in respect of any
Basis Risk Shortfall shall
be
zero dollars ($0.00).
Section
5.14 Supplemental
Interest Trust.
(a) On
the
Closing Date, the Securities Administrator shall establish and maintain in
the
name of the Trustee a separate account for the benefit of the holders of the
Group I Offered Certificates and the Group II Offered Certificates (the
“Supplemental Interest Trust”). The Supplemental Interest Trust shall be an
Eligible Account, and funds on deposit therein shall be held separate and apart
from, and shall not be commingled with, any other moneys, including, without
limitation, other moneys of the Trustee or of the Securities Administrator
held
pursuant to this Agreement.
(b) On
each
Distribution Date, the Securities Administrator shall deposit into the
Supplemental Interest Trust amounts distributable to the Group I Swap Provider
by the Supplemental Interest Trust pursuant to 5.04 and to the Group II Swap
Provider by the Securities Administrator pursuant to Section 5.05 of this
Agreement. On each Distribution Date, the Securities Administrator shall
distribute any such amounts to the related Swap Provider pursuant to the related
Swap Agreement, first to pay any related Net Swap Payment owed to the related
Swap Provider for such Distribution Date, and second to pay any Swap Termination
Payment owed to the related Swap Provider.
(c) On
each
Distribution Date, the Securities Administrator shall deposit into the
Supplemental Interest Trust amounts received by it from the Group I Swap
Provider and Group II Swap Provider. On each Distribution Date, the Securities
Administrator shall distribute from the Supplemental Interest Trust an amount
equal to the amount of any related Net Swap Payment received from the related
Swap Provider under the related Swap Agreement, and make the distributions
required under Sections 5.04 and 5.05 of this Agreement.
(d) The
Supplemental Interest Trust constitutes an “outside reserve fund” within the
meaning of Treasury Regulation § 1.860G-2(h) and is not an asset of any REMIC.
The Holders of the Class I-X and Class II-X Certificates shall be the beneficial
owner of the Supplemental Interest Trust, subject to the power of the Securities
Administrator to transfer amounts under this Agreement. The Securities
Administrator shall keep records that accurately reflect the funds on deposit
in
the Supplemental Interest Trust and shall keep track of payments made pursuant
to each Swap Agreement separately. The Securities Administrator shall, at the
written direction of the Holder of the Majority Class I-X Certificateholder
or
Majority Class II-X Certificateholder, as applicable, invest amounts on deposit
in the Supplemental Interest Trust in respect of the Group I Swap Agreement
or
Group II Swap Agreement, as applicable, in Permitted Investments; provided,
however, that amounts in the Supplement Interest Trust in respect of the Group
I
Swap Agreement may only be invested pursuant to item (i) of the definition
of
Permitted Investments. In the absence of written direction to the Securities
Administrator from the Majority Class I-X Certificateholder or Majority Class
II-X Certificateholder, all funds in respect of the Group I Swap Agreement
or
Group II Swap Agreement, as applicable, in the Supplemental Interest Trust
shall
remain uninvested. On each Distribution Date, the Securities Administrator
shall
distribute, not in respect of any REMIC, any interest earned on the Supplemental
Interest Trust to the Holders of the Class I-X Certificates or Class II-X
Certificates, as applicable.
(e) For
federal income tax purposes, amounts paid to the Supplemental Interest Trust
on
each Distribution Date pursuant to Sections 5.04 and 5.05 shall first be deemed
paid to the Supplemental Interest Trust in respect of the Class I-IO Interest
or
the Class II-IO Interest, as applicable, to the extent of the amount
distributable on such Class I-IO Interest or Class II-IO Interest on such
Distribution Date, and any remaining amount shall be deemed paid to the
Supplemental Interest Trust in respect of the Class I-IO Distribution Amount
or
Class II-IO Distribution Amount, as applicable. For federal income tax purposes,
the Supplemental Interest Trust will be treated as a partnership.
The
Securities Administrator shall treat the Holders of the Group I Certificates
(other than the Class I-P, Class I-X, Class I-R and Class I-R-X Certificates)
and the Holders of the Group II Certificates (other than the Class II-P, Class
II-X, Class II-R and Class II-R-X Certificates) as having entered into a
notional principal contract with respect to the Holders of the Class I-X
Certificates or Class II-X Certificates, as applicable. Pursuant to each such
notional principal contract, all Holders of the Group I Certificates (other
than
the Class I-P, Class I-X, Class I-R and Class I-R-X Certificates) and the
Holders of the Group II Certificates (other than the Class II-P, Class II-X,
Class II-R and Class II-R-X Certificates) shall be treated as having agreed
to
pay, on each Distribution Date, to the Holder of the Class I-X Certificates
or
Class II-X Certificates, as applicable, an aggregate amount equal to the excess,
if any, of (i) the amount payable on such Distribution Date on the REMIC IC
Regular Interest or REMIC IIC Regular Interest, ownership of which is
represented by such Class of Group I Certificates or Group II Certificates,
as
applicable over (ii) the amount payable on such Class of Group I Certificates
or
Group II Certificates on such Distribution Date (such excess, a “Class I-IO
Distribution Amount” or “Class II-IO Distribution Amount). A Class I-IO
Distribution Amount payable from interest collections shall be allocated pro
rata among such Group I Certificates based on the amount of interest otherwise
payable to such Certificates, and a Class I-IO Distribution Amount payable
from
principal collections shall be allocated to the most subordinate Class of such
Group I Certificates with an outstanding principal balance to the extent of
such
balance. A Class II-IO Distribution Amount payable from interest collections
shall be allocated pro rata among such Group II Certificates based on the amount
of interest otherwise payable to such Certificates, and a Class II-IO
Distribution Amount payable from principal collections shall be allocated to
the
most subordinate Class of such Group II Certificates with an outstanding
principal balance to the extent of such balance. In addition, pursuant to such
notional principal contract, the Holder of the Class I-X Certificates or Class
II-X Certificates shall be treated as having agreed to pay Net WAC Rate
Carryover Amounts or Basis Risk Shortfalls, as applicable, to the Holders of
the
Group I Certificates or Group II Certificates, as applicable (other than the
Class I-X, Class I-P, Class I-R, Class I-R-X, Class II-X, Class II-P, Class
II-R
and Class II-R-X Certificates) in accordance with the terms of this Agreement.
Any payments to such Certificates from amounts deemed received in respect of
this notional principal contract shall not be payments with respect to a Regular
Interest in a REMIC within the meaning of Code Section 860G(a)(1). However,
any payment from the Group I Certificates or Group II Certificates (other than
the Class I-X, Class I-P, Class I-R, Class I-R-X, Class II-X, Class II-P, Class
II-R and Class II-R-X Certificates) of a Class I-IO Distribution Amount or
Class
II-IO Distribution Amount shall be treated for tax purposes as having been
received by the Holders of such Certificates in respect of the REMIC IC Regular
Interest or REMIC IIC Regular Interest ownership of which is represented by
such
Certificates, and as having been paid by such Holders to the Supplemental
Interest Trust pursuant to the notional principal contract. Thus, each Group
I
Offered Certificates or Group II Offered Certificate, as applicable shall be
treated as representing not only ownership of a Regular Interest in REMIC IC
or
REMIC IIC, but also ownership of an interest in, and obligations with respect
to, a notional principal contract.
(f) The
Sponsor shall provide to the Securities Administrator the value of the right
of
the holders of the Group I Offered Certificates and Group II Offered
Certificates to receive payments from the Supplemental Interest Trust for
federal tax return and information reporting not later than December 31,
2007.
(g) In
the
event that a Swap Agreement is terminated prior to the Distribution Date in
January 2012, the Sponsor shall use reasonable efforts to appoint a successor
swap provider using any Swap Termination Payments paid by the Swap Provider.
If
the Sponsor is unable to locate a qualified successor swap provider, any such
Swap Termination Payments will be remitted to the Securities Administrator
for
payment to the holders of the related Classes of Publicly Offered Certificates
of amounts described in Section 5.04(f) and 5.05(d).
(h) In
the
event that the Group I Swap Provider or the Group II Swap Provider (each, a
“Swap Provider”) fails to perform any of its obligations under the Group I Swap
Agreement or the Group II Swap Agreement (each, a “Swap Agreement”),
respectively (including, without limitation, its obligation to make any payment
or transfer collateral), or breaches any of its representations and warranties
thereunder, or in the event that any Event of Default, Termination Event, or
Additional Termination Event (each as defined in the related Swap Agreement)
occurs with respect to a Swap Agreement, the Securities Administration on behalf
of the Supplemental Interest Trust Trustee shall, promptly following actual
notice of such failure, breach or event, notify the Depositor and send any
notices and make any demands, on behalf of the Supplemental Interest Trust,
required to enforce the rights of the Supplemental Interest Trust under such
Swap Agreement.
In
the
event that the Swap Provider’s obligations are guaranteed by a third party under
a guaranty relating to a Swap Agreement (such guaranty the “Guaranty” and such
third party the “Guarantor”), then to the extent that the Swap Provider fails to
make any payment by the close of business on the day it is required to make
payment under the terms of such Swap Agreement, the Securities Administration
on
behalf of the Supplemental Interest Trust Trustee shall, promptly following
actual notice of the Swap Provider’s failure to pay, demand that the Guarantor
make any and all payments then required to be made by the Guarantor pursuant
to
such Guaranty; provided, that the Supplemental Interest Trust Trustee shall
in
no event be liable for any failure or delay in the performance by the Swap
Provider or any Guarantor of its obligations hereunder or pursuant to the
related Swap Agreement and the Guaranty, nor for any special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits) in connection therewith.
Section
5.15 Tax
Treatment of Swap Payments and Swap Termination Payments.
For
federal income tax purposes, each Holder of a Group I Senior Certificate,
Subordinate Certificate, Group II Senior Certificate or Mezzanine Certificate
is
deemed to own an undivided beneficial ownership interest in a REMIC regular
interest and the right to receive payments from either the Net WAC Rate
Carryover Reserve Fund or Basis Risk Shortfall Reserve Fund or the Supplemental
Interest Trust in respect of any Net WAC Rate Carryover Amounts, Basis Risk
Shortfall Carry-Forward Amounts or the obligation to make payments to the
Supplemental Interest Trust. For federal income tax purposes, the Securities
Administrator will account for payments to each Group I Senior Certificate,
Subordinate Certificate, Group II Senior Certificate and Mezzanine Certificate
as follows: each Group I Senior Certificate and Subordinate Certificate will
be
treated as receiving their entire payment from REMIC IC (regardless of any
Swap
Termination Payment or obligation under the Swap Agreement) and subsequently
paying their portion of any Swap Termination Payment in respect of each such
Class’ obligation under the Swap Agreement. Each Group II Senior Certificate and
Mezzanine Certificate will be treated as receiving their entire payment from
REMIC IIC (regardless of any Swap Termination Payment or obligation under the
Swap Agreement) and subsequently paying their portion of any Swap Termination
Payment in respect of each such Class’ obligation under the Swap Agreement. In
the event that any such Class is resecuritized in a REMIC, the obligation under
the Swap Agreement to pay any such Swap Termination Payment (or any shortfall
in
Net Swap Payment), will be made by one or more of the REMIC Regular Interests
issued by the resecuritization REMIC subsequent to such REMIC Regular Interest
receiving its full payment from any such Group I Senior Certificate, Subordinate
Certificate, Group II Senior Certificate and Mezzanine Certificate.
Each
REMIC Regular Interest corresponding to a Group I Senior Certificate,
Subordinate Certificate, Group II Senior Certificate and Mezzanine Certificate
will be entitled to receive interest and principal payments at the times and
in
the amounts equal to those made on the certificate to which it corresponds,
except that (i) the maximum interest rate of that REMIC regular interest will
equal the Net Funds Cap or Net WAC Rate Cap computed for this purpose by
limiting the Notional Amount of the related Swap Agreement to the Certificate
Principal Balance of the Class I-A-4 Certificates or the aggregate Stated
Principal Balance of the Group II Mortgage Loans, as applicable, and (ii) any
Swap Termination Payment will be treated as being payable solely from amounts
otherwise payable to the Class I-X Certificates or Class II-X Certificates,
as
applicable,. As a result of the foregoing, the amount of distributions and
taxable income on the REMIC Regular Interest corresponding to a Group I Senior
Certificate, Subordinate Certificate, Group II Senior Certificate and Mezzanine
Certificate may exceed the actual amount of distributions on the Group I Senior
Certificates, Subordinate Certificates, Group II Senior Certificates and
Mezzanine Certificates.
Section
5.16 Reports
Filed with Securities and Exchange Commission.
(a) (i)For
so
long as the Trust Fund is subject to Exchange Act reporting requirements, within
fifteen (15) days after each Distribution Date (subject to permitted extensions
under the Exchange Act), the Securities Administrator shall prepare and file
on
behalf of the Trust Fund any Form 10-D required by the Exchange Act, in form
and
substance as required by the Exchange Act. The Securities Administrator shall
file each Form 10-D with a copy of the related Monthly Statement attached
thereto. The Securities Administrator shall also include with each Form 10-D
any
disclosure required by the Exchange Act in addition to the Monthly Statement
that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”)
subject to the receipt of such information by the Securities Administrator
from
the entity indicated on Exhibit N as the party responsible for providing that
information. The Securities Administrator will have no duty or liability for
any
failure hereunder to determine or prepare any Additional Form 10-D Disclosure,
except as set forth in the next paragraph.
(ii) As
set
forth on Exhibit N hereto, within 5 calendar days after the related Distribution
Date, (i) the parties to this transaction shall be required to provide to the
Securities Administrator and to the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible form, or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Additional Form 10-D Disclosure, if applicable, together
with an Additional Disclosure Notification in the form of Exhibit H hereto
(an
“Additional Disclosure Notification”) and (ii) the Depositor will approve, as to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible
for any reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 10-D to the Depositor (provided that
such Form 10-D includes any Additional Form 10-D Disclosure). Within two
Business Days after receipt of such copy, but no later than the 12th calendar
day after the Distribution Date, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form
10-D,
the Securities Administrator shall be entitled to assume that such Form 10-D
is
in final form and the Securities Administrator may proceed with the execution
and filing of the Form 10-D. A duly authorized representative of the Master
Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed on time
or if
a previously filed Form 10-D needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 5.16(c)(ii). Promptly (but
no later than 1 Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website a final executed
copy
of each Form 10-D filed by the Securities Administrator. Each party to this
Agreement acknowledges that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 5.16(a) related
to the timely preparation, execution and filing of Form 10-D is contingent
upon
such parties strictly observing all applicable deadlines in the performance
of
their duties as set forth in this Agreement. Neither the Master Servicer nor
the
Securities Administrator shall have any liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-D, where such failure results from the
Securities Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 10-D, not resulting from its own
negligence, bad faith or willful misconduct.
(b) (i)For
so
long as the Trust Fund is subject to Exchange Act reporting requirements, within
four (4) Business Days after the occurrence of an event set forth on Exhibit
N
hereto or such other event requiring disclosure on Form 8-K (each such event,
a
“Reportable
Event”),
or if
requested by the Depositor, and subject to receipt of such information by the
Securities Administrator from the entity indicated on Exhibit N as the
responsible party for providing that information, the Securities Administrator
shall prepare and file on behalf of the Trust Fund any Form 8-K, as required
by
the Exchange Act, provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K other than the initial
Form 8-K (“Form
8-K Disclosure Information”)
shall
be reported by the parties set forth on Exhibit
N
to the
Depositor and the Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth in
the
next paragraph.
(ii) As
set
forth on Exhibit N hereto, for so long as the Trust is subject to the Exchange
Act reporting requirements, no later than the close of business (New York City
time) on the 2nd Business Day after the occurrence of a Reportable Event (i)
the
parties to this transaction shall be required to provide to the Securities
Administrator and to the Depositor, to the extent known by a responsible officer
thereof, in XXXXX-compatible form, or in such other form as otherwise agreed
upon by the Securities Administrator and such party, the form and substance
of
any Form 8-K Disclosure Information, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Form 8-K
Disclosure Information. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Securities Administrator in
connection with including any Form 8-K Disclosure Information on Form 8-K
pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 8-K to the Depositor. Promptly, but
no
later than the close of business on the third Business Day after the Reportable
Event, the Depositor shall notify the Securities Administrator in writing (which
may be furnished electronically) of any changes to or approval of such Form
8-K.
In the absence of receipt of any written changes or approval, or if the
Depositor does not request a copy of a Form 8-K, the Securities Administrator
shall be entitled to assume that such Form 8-K is in final form and the
Securities Administrator may proceed with the execution and filing of the Form
8-K. A duly authorized representative of the Master Servicer shall sign each
Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form
8-K needs to be amended, the Securities Administrator will follow the procedures
set forth in Section 5.16(c)(ii). Promptly (but no later than 1 Business
Day) after filing with the Commission, the Securities Administrator will, make
available on its internet website a final executed copy of each Form 8-K that
is
filed by the Securities Administrator. The parties to this Agreement acknowledge
that the performance by the Master Servicer and the Securities Administrator
of
its duties under this Section 5.16(b) related to the timely preparation,
execution and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Agreement. Neither the Master Servicer nor the Securities Administrator shall
have any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
8-K, where such failure results from the Securities Administrator’s inability or
failure to obtain or receive, on a timely basis, any information from any other
party hereto needed to prepare, arrange for execution or file such Form 8-K,
not
resulting from its own negligence, bad faith or willful misconduct.
(c) (i)On
or
prior to January 30 of the first year in which the Securities Administrator
is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 Suspension Notification relating to the automatic suspension
of reporting in respect of the Trust Fund under the Exchange Act.
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly notify electronically the Depositor. In the case of Form 10-D and
10-K,
the parties to this Agreement will cooperate to prepare and file a Form 12b-25
and a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange
Act. In the case of Form 8-K, the Securities Administrator will, upon receipt
of
all required Form 8-K Disclosure Information and upon the approval and direction
of the Depositor, include such disclosure information on the next Form 10-D.
In
the event that any previously filed Form 8-K, 10-D or 10-K needs to be amended
in connection with any Additional Form 10-D Disclosure (other than for the
purpose of restating any monthly report), Additional Form 10-K Disclosure or
Form 8-K Disclosure Information, the Securities Administrator will
electronically notify the Depositor and such other parties to the transaction
as
are affected by such amendment, and such parties will cooperate to prepare
any
necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment
to
Form 8-K, 10-D or 10-K shall be signed by a duly authorized representative,
or
senior officer in charge of master servicing, as applicable, of the Master
Servicer. The parties to this Agreement acknowledge that the performance by
the
Master Servicer and the Securities Administrator of its duties under this
Section 5.16(c) related to the timely preparation, execution and filing of
Form 15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon each such party performing its duties under this Section. Neither the
Master Servicer nor the Securities Administrator shall have any liability for
any loss, expense, damage, claim arising out of or with respect to any failure
to properly prepare, execute and/or timely file any such Form 15, Form 12b-25
or
any amendments to Forms 8-K, 10-D or 10-K, where such failure results from
the
Securities Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 15, Form 12b-25 or any amendments to
Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
(d) (i)For
so
long as the trust is subject to Exchange Act reporting requirements, within
90
days after the end of each calendar year or such earlier date as may be required
by the Exchange Act (the “10-K
Filing Deadline”),
commencing in March 2008, the Securities Administrator shall prepare and file
on
behalf of the Trust Fund a Form 10-K, in form and substance as required by
the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, (i) an annual
compliance statement for each Servicing Function Participant (other than the
Custodian), as described under Section 3.13, (ii)(A) the annual reports on
assessment of compliance with servicing criteria for each Servicing Function
Participant, as described under Section 3.14 and the Custodial Agreement,
and (B) if any Servicing Function Participant’s report on assessment of
compliance with servicing criteria described under Section 3.14 identifies
any material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if any Servicing Function Participant’s report on assessment
of compliance with servicing criteria described under Section 3.14 is not
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included, (iii)(A) the
registered public accounting firm attestation report for each Servicing Function
Participant, as described under Section 3.14 and the Custodial Agreement,
and (B) if any registered public accounting firm attestation report described
under Section 3.14 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any such registered
public accounting firm attestation report is not included as an exhibit to
such
Form 10-K, disclosure that such report is not included and an explanation why
such report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as
described in Section 3.18. The Securities Administrator shall also include
with each Form 10-K any disclosure or information in addition to (i) through
(iv) above that is required to be included on Form 10-K as set forth on Exhibit
N under Form 10-K (“Additional
Form 10-K Disclosure”)
subject to receipt of such information by the Securities Administrator from
the
entity indicated on Exhibit N as the responsible party for providing that
information. The Securities Administrator will have no duty or liability for
any
failure hereunder to determine or prepare any Additional Form 10-K Disclosure,
except as set forth in the next paragraph.
(ii) As
set
forth on Exhibit N hereto, no later than March 1 (with a ten-calendar day cure
period) of each year that the Trust is subject to the Exchange Act reporting
requirements, commencing in 2007, (i) the parties to this transaction shall
be
required to provide to the Securities Administrator and to the Depositor, to
the
extent known by a responsible officer thereof, in XXXXX-compatible form, or
in
such other form as otherwise agreed upon by the Securities Administrator and
such party, the form and substance of any Additional Form 10-K Disclosure,
if
applicable, together with an Additional Disclosure Notification and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The
Depositor will be responsible for any reasonable fees and expenses assessed
or
incurred by the Securities Administrator in connection with including any
Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph.
(iii) After
preparing the Form 10-K, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 10-K to the Depositor. Within three
Business Days after receipt of such copy, but no later than March 25th, the
Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K.
In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-K, the Securities Administrator shall
be
entitled to assume that such Form 10-K is in final form and the Securities
Administrator may proceed with the execution and filing of the Form 10-K. A
senior officer of the Master Servicer in charge of the master servicing function
shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 5.16(c)(ii). Promptly (but
no later than one (1) Business Day) after filing with the Commission, the
Securities Administrator will make available on its internet website a final
executed copy of each Form 10-K to be filed by the Securities Administrator.
The
parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of its duties under this
Section 5.16(d) related to the timely preparation, execution and filing of
Form 10-K is contingent upon such parties (and any Servicing Function
Participant) strictly observing all applicable deadlines in the performance
of
their duties under this Section 5.16(d), Section 3.13,
Section 3.14 and Section 3.18. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 10-K, where such failure results from the
Securities Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
(e) Each
of
Form 10-D and Form 10-K requires the registrant to indicate (by checking "yes"
or "no") that it "(1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days."
The
Depositor hereby represents to the Securities Administrator as of the date
hereof that the Depositor has (1) filed all such required reports that (a)
the
Depositor has undertaken to file on its own behalf or (b) relate to other
securitization transactions of the Depositor for which Xxxxx Fargo Bank, N.A.,
in its capacity as Securities Administrator or similar capacity, does not have
the exclusive obligation to prepare and file during the preceding 12 months;
provided, however, that the Depositor shall not be obligated to make such
representation with respect to any filings made by Xxxxx Fargo on behalf of
the
Depositor, and (2) that it has been subject to such filing requirement for
the
past 90 days. The Depositor shall notify the Securities Administrator in
writing, no later than the fifth calendar day after the related Distribution
Date with respect to the filing of a report on Form 10-D and no later than
March
15th with respect to the filing of a report on Form 10-K, if the answer to
the
questions should be "no". The Securities Administrator shall be entitled to
rely
on such representations in preparing, executing and/or filing any such
report.
(f) The
Servicer, the Master Servicer, the Depositor, the Custodian, the Sponsor and
Securities Administrator shall indemnify and hold harmless the Depositor, the
Trustee and their respective officers, directors and Affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses arising
out
of or based upon a breach of such party’s obligations under this
Section 5.16 or such party’s negligence, bad faith or willful misconduct in
connection therewith.
Notwithstanding
the provisions of Section 11.01, this Section 5.16 may be amended
without the consent of the Certificateholders.
Section
5.17 Final
Maturity Reserve Trust.
(a) On
the
Closing Date, the Securities Administrator shall establish a separate common
law
trust under the laws of the State Delaware for the benefit of the Holders of
the
Group I Offered Certificates (the “Final Maturity Reserve Trust”) into which the
Depositor shall deposit $1,000. The Final Maturity Reserve Trust shall be
maintained by the Securities Administrator. On the Closing Date, the Securities
Administrator shall establish and maintain in its name, a separate non-interest
bearing account (the “Final Maturity Reserve Account”), into which the Depositor
shall initially deposit $1,000. The Final Maturity Reserve Account shall be
an
Eligible Account, and funds on deposit therein shall be held separate and apart
from, and shall not be commingled with, any other moneys, including, without
limitation, other moneys of the Securities Administrator held pursuant to this
Agreement. The Final Maturity Reserve Account shall be entitled “Final Maturity
Reserve Account, Xxxxx Fargo Bank N.A. for the benefit of the holders of Nomura
Home Equity Loan, Inc., Asset-Backed Certificates, Series 2007-1, Class I-A-1,
Class I-A-2, Class I-A-3, Class I-A-4, Class I-M-1, Class I-M-2 and Class I-M-3
Certificates”. The funds in the Final Maturity Reserve Account shall remain
uninvested.
(b) Beginning
on the Distribution Date in February 2027 and on each Distribution Date up
to
and including the distribution date in February 2037, if on such Distribution
Date the aggregate Stated Principal Balance of the Group I Mortgage Loans with
40-year original terms to maturity is greater than the aggregate Stated
Principal Balance for such Distribution Date set forth in Schedule One hereto,
the Majority Holder of the Class I-X Certificates will deposit the difference,
minus any amounts on deposit in the Final Maturity Reserve Account, into the
Final Maturity Reserve Account. If on any such Distribution Date the aggregate
Stated Principal Balance specified on Schedule One hereto for such Distribution
Date exceeds the aggregate Stated Principal Balance of the Group I Mortgage
Loans having 40-year original terms to maturity as of the end of the related
Due
Period, an amount equal to such excess will be withdrawn by the Securities
Administrator from the Final Maturity Reserve Account and remitted to the
Majority Holder of the Class I-X Certificates.
(c) On
the
earlier of the Distribution Date in February 2037 and the termination of the
Trust, all amounts on deposit in the Final Maturity Reserve Account will be
distributed to holders of the Group I Certificates in the amounts and priorities
described below. It is intended that these amounts along with any amounts in
the
trust relating to the Group I Mortgage Loans will be sufficient to retire the
Group I Certificates on the Last Scheduled Distribution Date, even though the
outstanding aggregate Stated Principal Balance of the Group I Mortgage Loans
having 40-year original terms to maturity have not been reduced to zero on
the
Last Scheduled Distribution Date. Any investment earnings on amounts on deposit
in the Final Maturity Reserve Account will remain in such account and will
be
distributed as described below.
On
the
earlier of the Distribution Date in February 2037 and the termination of the
trust after giving effect to all other distributions, funds on deposit in the
Final Maturity Reserve Account will be distributed in the following order of
priority:
(i) concurrently,
to the Group I Senior Certificates, in reduction of their respective Certificate
Principal Balances, on a pro rata basis, based on the Certificate Principal
Balance of each such Class, until the Certificate Principal Balance of each
such
Class has been reduced to zero;
(ii) sequentially,
to the Class I-M-1, Class I-M-2 and Class I-M-3 Certificates, in that order,
until the Certificate Principal Balance of each such Class has been reduced
to
zero;
(iii) concurrently,
to the Group I Senior Certificates, Current Interest to the extent remaining
unpaid following distribution of the Available Distribution Amount;
(iv) sequentially,
to the Class I-M-1, Class I-M-2 and Class I-M-3 Certificates, in that order,
Current Interest to the extent remaining unpaid following distribution of the
Available Distribution Amount; and
(v) to
the
Majority Holder of the Class I-X Certificates, any remaining
amounts.
(d) Amounts
on deposit in the Final Maturity Reserve Account will constitute an asset of
the
Final Maturity Reserve Trust but will not be an asset of any REMIC. The Class
I-X Certificates shall evidence ownership of the Final Maturity Reserve Trust
for federal income tax purposes.
(e) For
federal income tax purposes, any Certificateholder that receives a principal
payment from the Final Maturity Reserve Trust shall be treated as selling a
portion of its Certificate to the Holder of the Class I-X Certificates and
as
having received the amount of the principal payment from the Holder of the
Class
I-X Certificates as the proceeds of the sale. The portion of the Certificate
that is treated as having been sold shall equal the amount of the corresponding
reduction in the Certificate Principal Balance of such Certificate. Principal
payments received from the Final Maturity Reserve Trust shall not be treated
as
distributions from any REMIC created hereby. All principal distributions from
the Final Maturity Reserve Trust shall be accounted for hereunder in accordance
with this Section 5.17(e).
Section
5.18 Swap
Collateral Accounts
The
Securities Administrator is hereby directed to perform the obligations of the
Custodian as defined under the Group I Swap Credit Support Annex and the Group
II Swap Credit Support Annex (the “Swap Custodian”).
On
or
shortly after the Closing Date, the Swap Custodian shall establish a Group
I
Swap Collateral Account. The Group I Swap Collateral Account shall be held
in
the name of the Swap Custodian in trust for the benefit of the Holders of
Certificates. The Group I Swap Collateral Account must be an Eligible Account
and shall be entitled “Nomura Home Equity Loan, Inc., Asset-Backed Certificates,
Series 2007-1, Group I Swap Collateral Account, Xxxxx Fargo Bank, N.A. as Swap
Custodian for the benefit of holders of Asset-Backed Certificates, Series
2007-1.”
On
or
shortly after the Closing Date, the Swap Custodian shall establish a Group
II
Swap Collateral Account. The Group II Swap Collateral Account shall be held
in
the name of the Swap Custodian in trust for the benefit of the Holders of
Certificates. The Group II Swap Collateral Account must be an Eligible Account
and shall be entitled “Nomura Home Equity Loan, Inc., Asset-Backed Certificates,
Series 2007-1, Group II Swap Collateral Account, Xxxxx Fargo Bank, N.A., as
Swap
Custodian for the benefit of holders of Asset-Backed Certificates, Series
2007-1.”
The
Swap
Custodian shall credit to each Swap Collateral Account all collateral (whether
in the form of cash or securities) posted by the related Swap Provider to secure
the obligations of the Swap Provider in accordance with the terms of the related
Swap Agreement. Except for investment earnings, the related Swap Provider shall
not have any legal, equitable or beneficial interest in such Swap Collateral
Account other than in accordance with this Agreement, the related Swap Agreement
and applicable law. The Swap Custodian shall maintain and apply all collateral
and earnings thereon on deposit in the related Swap Collateral Account in
accordance with the related Swap Credit Support Annex.
Cash
collateral posted by a Swap Provider in accordance with the related Swap Credit
Support Annex shall be invested at the direction of such Swap Provider in
Permitted Investments in accordance with the requirements of the related Swap
Credit Support Annex. In the absence of such direction, amounts therein will
remain uninvested. All amounts earned on amounts on deposit in the related
Swap
Collateral Account (whether cash collateral or securities) shall be for the
account of and taxable to the related Swap Provider.
Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
related Swap Agreement) with respect to a Swap Provider or upon occurrence
or
designation of an Early Termination Date (as defined in the Cap Contract) as
a
result of any such Event of Default or Specified Condition with respect to
such
Swap Provider, and, in either such case, unless such Swap Provider has paid
in
full all of its Obligations (as defined in the related Swap Credit Support
Annex) that are then due, then any collateral posted by such Swap Provider
in
accordance with such Swap Credit Support Annex shall be applied to the payment
of any Obligations due to Party B (as defined in the related Swap Agreement)
in
accordance with the related Swap Credit Support Annex. Any excess amounts held
in such Swap Collateral Account after payment of all amounts owing to Party
B
under the related Swap Agreement shall be withdrawn from the related Swap
Collateral Account and paid to the related Swap Provider in accordance with
the
related Swap Credit Support Annex.
Section
5.19 Cap
Collateral Account
The
Securities Administrator is hereby directed to perform the obligations of the
Custodian as defined under the Cap Credit Support Annexes (the “Cap Custodian”).
On
or
shortly after the Closing Date, the Cap Custodian shall establish a Cap
Collateral Account. The Cap Collateral Account shall be held in the name of
the
Cap Custodian in trust for the benefit of the Holders of Certificates. The
Cap
Collateral Account must be an Eligible Account and shall be entitled “Nomura
Home Equity Loan, Inc., Asset-Backed Certificates, Series 2007-1, Cap Collateral
Account, HSBC Bank USA, National Association, as Cap Custodian for the benefit
of holders of Asset-Backed Certificates, Series 2007-1.”
The
Cap
Custodian shall credit to the Cap Collateral Account all collateral (whether
in
the form of cash or securities) posted by the Cap Provider to secure the
obligations of the Cap Provider in accordance with the terms of the Cap
Contracts. Except for investment earnings, the Cap Provider shall not have
any
legal, equitable or beneficial interest in the Cap Collateral Account other
than
in accordance with this Agreement, the Cap Contracts and applicable law. The
Cap
Custodian shall maintain and apply all collateral and earnings thereon on
deposit in the Cap Collateral Account in accordance with each Cap Credit Support
Annex.
Cash
collateral posted by the Cap Provider in accordance with a Cap Credit Support
Annexes shall be invested at the direction of the Cap Provider in Permitted
Investments in accordance with the requirements of the related Cap Credit
Support Annex. In the absence of such direction, amounts therein will remain
uninvested. All amounts earned on amounts on deposit in the Cap Collateral
Account (whether cash collateral or securities) shall be for the account of
and
taxable to the Cap Provider.
Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
related Cap Contract) with respect to the Cap Provider or upon occurrence or
designation of an Early Termination Date (as defined in the related Cap
Contract) as a result of any such Event of Default or Specified Condition with
respect to the Cap Provider, and, in either such case, unless the Cap Provider
has paid in full all of its Obligations (as defined in the related Cap Credit
Support Annex) that are then due, then any collateral posted by the Cap Provider
in accordance with the related Cap Credit Support Annex shall be applied to
the
payment of any Obligations due to Party B (as defined in the related Cap
Contract) in accordance with the related Cap Credit Support Annex. Any excess
amounts held in such Cap Collateral Account after payment of all amounts owing
to Party B under the related Cap Contract shall be withdrawn from the Cap
Collateral Account and paid to the Cap Provider in accordance with the related
Cap Credit Support Annex.
ARTICLE
VI
THE
CERTIFICATES
Section
6.01 The
Certificates.
(a) The
Certificates shall be substantially in the forms attached hereto as Exhibits
A-1
through A-7. The Certificates shall be issuable in registered form, in the
minimum dollar denominations, integral dollar multiples in excess thereof
(except that one Certificate of each Class may be issued in a different amount
which must be in excess of the applicable minimum dollar denomination) and
aggregate dollar denominations as set forth in the following table:
|
Class
|
Minimum
Denomination
|
Integral
Multiple in Excess of Minimum
|
Original
Certificate Principal Balance
|
Pass-Through
Rate
|
||
|
I-A-1
|
$25,000
|
$1
|
$166,917,000.00
|
Class
I-A-1 Pass-Through Rate
|
||
|
I-A-2
|
$25,000
|
$1
|
$
29,345,000.00
|
Class
I-A-2 Pass-Through Rate
|
||
|
I-A-3
|
$25,000
|
$1
|
$
84,528,000.00
|
Class
I-A-3 Pass-Through Rate
|
||
|
I-A-4
|
$25,000
|
$1
|
$111,610,000.00
|
Class
I-A-4 Pass-Through Rate
|
||
|
I-M-1
|
$25,000
|
$1
|
$
15,865,000.00
|
Class
I-M-1 Pass-Through Rate
|
||
|
I-M-2
|
$25,000
|
$1
|
$
9,308,000.00
|
Class
I-M-2 Pass-Through Rate
|
||
|
I-M-3
|
$25,000
|
$1
|
$
5,500,000.00
|
Class
I-M-3 Pass-Through Rate
|
||
|
II-1-A
|
$25,000
|
$1
|
$100,548,000.00
|
Class
II-1-A Pass-Through Rate
|
||
|
II-2A-1A
|
$25,000
|
$1
|
$270,000,000.00
|
Class
II-2-A-1A Pass-Through Rate
|
||
|
II-2A-1B
|
$25,000
|
$1
|
$
30,000,000.00
|
Class
II-2-A-1B Pass-Through Rate
|
||
|
II-2-A-2
|
$25,000
|
$1
|
$
92,840,000.00
|
Class
II-2-A-2 Pass-Through Rate
|
||
|
II-2-A-3
|
$25,000
|
$1
|
$
28,817,000.00
|
Class
II-2-A-3 Pass-Through Rate
|
||
|
II-2-A-4A
|
$25,000
|
$1
|
$
31,167,000.00
|
Class
II-2-A-4A Pass-Through Rate
|
||
|
II-2-A-4B
|
$25,000
|
$1
|
$
3,463,000.00
|
Class
II-2-A-4B Pass-Through Rate
|
||
|
II-M-1
|
$25,000
|
$1
|
$
8,100,000.00
|
Class
II-M-1 Pass-Through Rate
|
||
|
II-M-2
|
$25,000
|
$1
|
$
7,800,000.00
|
Class
II-M-2 Pass-Through Rate
|
||
|
II-M-3
|
$25,000
|
$1
|
$
5,100,000.00
|
Class
II-M-3 Pass-Through Rate
|
||
|
II-M-4
|
$25,000
|
$1
|
$
3,900,000.00
|
Class
II-M-4 Pass-Through Rate
|
||
|
II-M-5
|
$25,000
|
$1
|
$
3,600,000.00
|
Class
II-M-5 Pass-Through Rate
|
||
|
II-M-6
|
$25,000
|
$1
|
$
3,300,000.00
|
Class
II-M-6 Pass-Through Rate
|
||
|
II-M-7
|
$25,000
|
$1
|
$
3,000,000.00
|
Class
II-M-7 Pass-Through Rate
|
||
|
II-M-8
|
$25,000
|
$1
|
$
3,900,000.00
|
Class
II-M-8 Pass-Through Rate
|
||
|
I-P
|
$1
|
$1
|
$
100.00
|
N/A
|
||
|
II-P
|
$1
|
$1
|
$
100.00
|
N/A
|
||
|
I-X
|
$1
|
$1
|
$
669.72
|
Class
I-X Pass-Through Rate
|
||
|
II-X
|
$1
|
$1
|
$ 4,503,527.80
|
Class
II-X Pass-Through Rate
|
||
|
I-R
|
N/A
|
N/A
|
N/A
|
N/A
|
||
|
I-R-X
|
N/A
|
N/A
|
N/A
|
N/A
|
||
|
II-R
|
N/A
|
N/A
|
N/A
|
N/A
|
||
|
II-R-X
|
N/A
|
N/A
|
N/A
|
N/A
|
||
Upon
original issue, the Certificates shall be executed and authenticated by the
Securities Administrator and delivered by the Trustee to and upon the written
order of the Depositor. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trust Fund by the Securities Administrator
by an authorized signatory. Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Securities Administrator shall bind the Trust, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
herein executed by the Securities Administrator by manual signature, and such
certificate of authentication shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their
authentication.
The
Depositor shall provide, or cause to be provided, to the Securities
Administrator on a continuous basis, an adequate inventory of Certificates
to
facilitate transfers.
(b) The
Class
I-X, Class I-P, Class II-X and Class II-P Certificates offered and sold to
Qualified Institutional Buyers in reliance on Rule 144A under the Securities
Act
(“Rule 144A”) will be issued in the form of Definitive
Certificates.
Section
6.02 Certificate
Register; Registration of Transfer and Exchange of
Certificates.
(a) The
Securities Administrator shall maintain, or cause to be maintained in accordance
with the provisions of Section 6.09, a Certificate Register for the
Certificates in which, subject to the provisions of subsections (b) and (c)
below and to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Certificates and of
Transfers and exchanges of Certificates as herein provided. Upon surrender
for
registration of Transfer of any Certificate, the Securities Administrator shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class and of like
aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever
any
Certificates are so surrendered for exchange, the Securities Administrator
shall
execute, authenticate, and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by
a
written instrument of Transfer in form satisfactory to the Securities
Administrator duly executed by the Holder thereof or his attorney duly
authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
Transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
Transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of Transfer or exchange shall be
canceled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator’s customary
procedures.
(b) No
Transfer of a Private Certificate shall be made unless such Transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under the Securities Act and such state securities laws. In the event that
a
Transfer is to be made in reliance upon an exemption from the Securities Act
and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such Transfer and such
Certificateholder’s prospective transferee shall each certify to the Securities
Administrator in writing the facts surrounding the Transfer in substantially
the
forms set forth in Exhibit E (the “Transferor Certificate”) and (x) deliver a
letter in substantially the form of either Exhibit F (the “Investment Letter”)
or Exhibit G (the “Rule 144A Letter”) or (y) there shall be delivered to the
Securities Administrator an Opinion of Counsel, at the expense of the
transferor, that such Transfer may be made pursuant to an exemption from the
Securities Act, which Opinion of Counsel shall not be an expense of the
Depositor, the Sponsor, the Securities Administrator, the Trustee or the Trust
Fund. The Depositor shall provide to any Holder of a Private Certificate and
any
prospective transferee designated by any such Holder, information regarding
the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for Transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by
Rule
144A. The Securities Administrator shall cooperate with the Depositor in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund
as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect
such
Transfer shall, and does hereby agree to, indemnify the Securities
Administrator, the Depositor and the Sponsor against any liability that may
result if the Transfer is not so exempt or is not made in accordance with such
federal and state laws.
No
Transfer of an ERISA Restricted Certificate shall be made unless the Securities
Administrator shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator to the effect that such transferee
is not an employee benefit plan subject to Section 406 of ERISA and/or a
plan subject to Section 4975 of the Code, or a Person acting on behalf of
any such plan or using the assets of any such plan, or (ii) in the case of
any
such ERISA Restricted Certificate presented for registration in the name of
an
employee benefit plan subject to ERISA, or a plan subject to Section 4975
of the Code (or comparable provisions of any subsequent enactments), or a
trustee of any such plan or any other person acting on behalf of any such plan,
an Opinion of Counsel satisfactory to the Securities Administrator for the
benefit of the Securities Administrator, the Depositor and the Servicer and
on
which they may rely to the effect that the purchase and holding of such ERISA
Restricted Certificate is permissible under applicable law, will not result
in
any prohibited transactions under ERISA or Section 4975 of the Code and
will not subject the Securities Administrator, the Depositor or any Servicer
to
any obligation in addition to those expressly undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Depositor or any Servicer. Notwithstanding anything else
to
the contrary herein, any purported transfer of an ERISA Restricted Certificate
to or on behalf of an employee benefit plan subject to Section 406 of ERISA
and/or a plan subject to Section 4975 of the Code other than in compliance
with the foregoing shall be void and of no effect; provided that the restriction
set forth in this sentence shall not be applicable if there has been delivered
to the Securities Administrator an Opinion of Counsel meeting the requirements
of clause (ii) of the first sentence of this paragraph. The Securities
Administrator shall not be under any liability to any Person for any
registration of transfer of any ERISA Restricted Certificate that is in fact
not
permitted by this Section 6.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement. The Securities Administrator
shall be entitled, but not obligated, to recover from any Holder of any ERISA
Restricted Certificate that was in fact an employee benefit plan subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or
a Person acting on behalf of any such plan at the time it became a Holder or,
at
such subsequent time as it became such a plan or Person acting on behalf of
such
a plan, all payments made on such ERISA Restricted Certificate at and after
either such time. Any such payments so recovered by the Securities Administrator
shall be paid and delivered by the Securities Administrator to the last
preceding Holder of such Certificate that is not such a plan or Person acting
on
behalf of a plan.
Each
beneficial owner of a Group I Mezzanine Certificate acquired after termination
of the Supplemental Interest Trust and the Final Maturity Reserve Trust, and
each beneficial owner of a Group II Mezzanine acquired
after termination of the Supplemental Interest Trust,
shall
be deemed to have represented, by virtue of its acquisition or holding of that
certificate or interest therein, that either (i) it is not a Plan or investing
with “Plan Assets”, (ii) it has acquired and is holding such certificate in
reliance on the Exemption, and that it understands that there are certain
conditions to the availability of the Exemption, including that the certificate
must be rated, at the time of purchase, not lower than “BBB-“ (or its
equivalent) by S&P or Xxxxx’x, and the certificate is so rated or (iii) (1)
it is an insurance company, (2) the source of funds used to acquire or hold
the
certificate or interest therein is an “insurance company general account,” as
such term is defined in Prohibited Transaction Class Exemption (“PTCE”) 95-60
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
For
so
long as the Supplemental Interest Trust or the Final Maturity Reserve Trust
is
in existence with respect to the Group I Offered Certificates, and for so long
as the Supplemental Interest Trust is in existence with respect to the Group
II
Offered Certificates, each beneficial owner of such Certificate or any interest
therein, shall be deemed to have represented, by virtue of its acquisition
or
holding of such Certificate, or interest therein, that either (i) it is not
a
Plan or (ii) (A) it is an accredited investor within the meaning of the
Exemption and (B) the acquisition and holding of such Certificate and the
separate right to receive payments from the Supplemental Interest Trust are
eligible for the exemptive relief available under one of PTCE 95-60, 91-38,
96-23, 90-1 or 84-14.
(c) (i)Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status as a Permitted
Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Residual
Certificate, the Securities Administrator shall require delivery to it, and
shall not register the Transfer of any Residual Certificate until its receipt
of, an affidavit and agreement (a “Transfer Affidavit and Agreement,” in the
form attached hereto as Exhibit D) from the proposed Transferee, in form and
substance satisfactory to the Securities Administrator, representing and
warranting, among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the Residual Certificate
that
is the subject of the proposed Transfer as a nominee, trustee or agent for
any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of this
Section 6.02(d) and agrees to be bound by them.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if an authorized officer of the Securities Administrator
who is assigned to this transaction has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest in a
Residual Certificate and (Y) not to transfer its Ownership Interest unless
it
provides a Transferor Affidavit (in the form attached hereto as Exhibit E)
to
the Securities Administrator stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
(E) Each
Person holding or acquiring an Ownership Interest in a Residual Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the
Securities Administrator written notice that it is a “pass-through interest
holder” within the meaning of temporary Treasury regulation
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Residual Certificate, if it is, or is holding an Ownership
Interest in a Residual Certificate on behalf of, a “pass-through interest
holder.”
(ii) The
Securities Administrator will register the Transfer of any Residual Certificate
only if it shall have received the Transfer Affidavit and Agreement and all
of
such other documents as shall have been reasonably required by the Securities
Administrator as a condition to such registration. In addition, no Transfer
of a
Residual Certificate shall be made unless the Securities Administrator shall
have received a representation letter from the Transferee of such Certificate
to
the effect that such Transferee is a Permitted Transferee.
(iii) (A)If
any
purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 6.02(d), then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights as Holder thereof retroactive to the date of registration
of
such Transfer of such Residual Certificate. The Securities Administrator shall
be under no liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 6.02(d)
or for making any payments due on such Certificate to the Holder thereof or
for
taking any other action with respect to such Holder under the provisions of
this
Agreement.
(B) If
any
purported Transferee shall become a Holder of a Residual Certificate in
violation of the restrictions in this Section 6.02(d) and to the extent
that the retroactive restoration of the rights of the Holder of such Residual
Certificate as described in clause (iii)(A) above shall be invalid, illegal
or
unenforceable, then the Securities Administrator shall have the right, without
notice to the Holder or any prior Holder of such Residual Certificate, to sell
such Residual Certificate to a purchaser selected by the Securities
Administrator on such terms as the Securities Administrator may choose. Such
purported Transferee shall promptly endorse and deliver each Residual
Certificate in accordance with the instructions of the Securities Administrator.
Such purchaser may be the Securities Administrator itself or any Affiliate
of
the Securities Administrator. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Securities Administrator or its
Affiliates), expenses and taxes due, if any, will be remitted by the Securities
Administrator to such purported Transferee. The terms and conditions of any
sale
under this clause (iii)(B) shall be determined in the sole discretion of the
Securities Administrator, and the Securities Administrator shall not be liable
to any Person having an Ownership Interest in a Residual Certificate as a result
of its exercise of such discretion.
(iv) The
Securities Administrator shall make available to the Internal Revenue Service
and those Persons specified by the REMIC Provisions all information necessary
to
compute any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of
such Residual Certificate and (B) as a result of any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code that holds an
Ownership Interest in a Residual Certificate having as among its record holders
at any time any Person which is a Disqualified Organization. Reasonable
compensation for providing such information may be charged or collected by
the
Securities Administrator.
(v) The
provisions of this Section 6.02(d) set forth prior to this subsection (v)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Securities Administrator at the expense of the party seeking
to
modify, add to or eliminate any such provision the following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates;
and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Securities
Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not cause any REMIC to cease to qualify
as a
REMIC and will not cause any REMIC, as the case may be, to be subject to an
entity-level tax caused by the Transfer of any Residual Certificate to a Person
that is not a Permitted Transferee or a Person other than the prospective
transferee to be subject to a REMIC-tax caused by the Transfer of a Residual
Certificate to a Person that is not a Permitted Transferee.
(d) Subject
to the preceding subsections, upon surrender for registration of transfer of
any
Certificate at any office or agency of the Securities Administrator maintained
for such purpose pursuant to Section 9.11, the Securities Administrator
shall execute, authenticate and deliver, in the name of the designated
Transferee or Transferees, one or more new Certificates of the same Class of
a
like aggregate Percentage Interest.
(e) At
the
option of the Holder thereof, any Certificate may be exchanged for other
Certificates of the same Class with authorized denominations and a like
aggregate Percentage Interest, upon surrender of such Certificate to be
exchanged at any office or agency of the Securities Administrator maintained
for
such purpose pursuant to Section 9.11. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute,
authenticate and deliver, the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for transfer or exchange shall (if so required by the Securities Administrator)
be duly endorsed by, or be accompanied by a written instrument of transfer
in
the form satisfactory to the Securities Administrator duly executed by, the
Holder thereof or his attorney duly authorized in writing. In addition, (i)
with
respect to each Class I-R Certificate, the Holder thereof may exchange, in
the
manner described above, such Class I-R Certificate for three separate
certificates, each representing such Holder's respective Percentage Interest
in
the Class R-1A Interest, Class R-1B Interest and Class R-1C Interest,
respectively, in each case that was evidenced by the Class I-R Certificate
being
exchanged, (ii) with respect to each Class I-R-X Certificate, the Holder thereof
may exchange, in the manner described above, such Class I-R-X Certificate for
three separate certificates, each representing such Holder's respective
Percentage Interest in the Class R-1D Interest, Class R-1E Interest and Class
R-1F Interest, respectively, in each case that was evidenced by the Class I-R-X
Certificate being exchanged, (iii) with respect to each Class II-R Certificate,
the Holder thereof may exchange, in the manner described above, such Class
II-R
Certificate for three separate certificates, each representing such Holder's
respective Percentage Interest in the Class R-2A Interest, the Class R-2B
Interest and the Class R-2C Interest, respectively, in each case that was
evidenced by the Class II-R Certificate being exchanged and (iv) with respect
to
each Class II-R-X Certificate, the Holder thereof may exchange, in the manner
described above, such Class II-R-X Certificate for three separate certificates,
each representing such Holder's respective Percentage Interest in the Class
R-2D
Interest, Class R-2E Interest and Class R-2F Interest, respectively, in each
case that was evidenced by the Class II-R-X Certificate being
exchanged.
(f) No
service charge to the Certificateholders shall be made for any transfer or
exchange of Certificates, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(g) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 6.02 shall not be an expense of the Trust Fund, the Securities
Administrator, the Depositor or the Sponsor.
(h) All
Certificates surrendered for transfer and exchange shall be canceled and
destroyed by the Securities Administrator in accordance with its customary
procedures.
Section
6.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a)
any mutilated Certificate is surrendered to the Securities Administrator, or
the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof
and
(b) there is delivered to the Securities Administrator such security or
indemnity as may be required by them to save each of them harmless, then, in
the
absence of notice to the Securities Administrator that such Certificate has
been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 6.03, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator) connected therewith. Any
replacement Certificate issued pursuant to this Section 6.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund,
as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. All Certificates surrendered to the Securities
Administrator under the terms of this Section 6.03 shall be canceled and
destroyed by the Securities Administrator in accordance with its standard
procedures without liability on its part.
Section
6.04 Persons
Deemed Owners.
The
Depositor, the Servicers, the Trustee, the Master Servicer, the Securities
Administrator and any of their agents may treat the person in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Depositor, the Servicers, the Trustee, the Master
Servicer, the Securities Administrator nor any of their agents shall be affected
by any notice to the contrary.
Section
6.05 Access
to List of Certificateholders’ Names and Addresses.
If
three
or more Certificateholders (a) request such information in writing from the
Securities Administrator, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Depositor shall request such information in writing from the Securities
Administrator, then the Securities Administrator shall, within ten Business
Days
after the receipt of such request, provide the Depositor or such
Certificateholders at such recipients’ expense the most recent list of the
Certificateholders of the Trust Fund held by the Securities Administrator,
if
any. The Depositor and every Certificateholder, by receiving and holding a
Certificate, agree that the Securities Administrator shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section
6.06 Book-Entry
Certificates.
The
Regular Certificates, upon original issuance, shall be issued in the form of
one
or more typewritten Certificates representing the Book- Entry Certificates,
to
be delivered to the Depository by or on behalf of the Depositor. Such
Certificates shall initially be registered on the Certificate Register in the
name of the Depository or its nominee, and no Certificate Owner of such
Certificates will receive a definitive certificate representing such Certificate
Owner’s interest in such Certificates, except as provided in Section 6.08.
Unless and until definitive, fully registered Certificates (“Definitive
Certificates”) have been issued to the Certificate Owners of such Certificates
pursuant to Section 6.08:
(a) the
provisions of this Section shall be in full force and effect;
(b) the
Depositor and the Securities Administrator may deal with the Depository and
the
Depository Participants for all purposes (including the making of distributions)
as the authorized representative of the respective Certificate Owners of such
Certificates;
(c) registration
of the Book-Entry Certificates may not be transferred by the Securities
Administrator except to another Depository;
(d) the
rights of the respective Certificate Owners of such Certificates shall be
exercised only through the Depository and the Depository Participants and shall
be limited to those established by law and agreements between the Owners of
such
Certificates and the Depository and/or the Depository Participants. Pursuant
to
the Depository Agreement, unless and until Definitive Certificates are issued
pursuant to Section 6.08, the Depository will make book-entry transfers
among the Depository Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Depository
Participants;
(e) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants;
(f) the
Depositor, the Servicer, the Trustee, the Master Servicer and the Securities
Administrator may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants;
and
(g) to
the
extent that the provisions of this Section conflict with any other
provisions of this Agreement, the provisions of this Section shall
control.
For
purposes of any provision of this Agreement requiring or permitting actions
with
the consent of, or at the direction of, Certificateholders evidencing a
specified percentage of the aggregate unpaid principal amount of any Class
of
Certificates, such direction or consent may be given by Certificate Owners
(acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
Section
6.07 Notices
to Depository.
Whenever
any notice or other communication is required to be given to Certificateholders
of a Class with respect to which Book-Entry Certificates have been issued,
unless and until Definitive Certificates shall have been issued to the related
Certificate Owners, the Securities Administrator shall give all such notices
and
communications to the Depository.
Section
6.08 Definitive
Certificates.
If,
after
Book-Entry Certificates have been issued with respect to any Certificates,
(a)
the Depositor or the Depository advises the Securities Administrator that the
Depository is no longer willing or able to discharge properly its
responsibilities under the Depository Agreement with respect to such
Certificates and the Securities Administrator or the Depositor is unable to
locate a qualified successor, (b) the Depositor, at its sole option, advises
the
Securities Administrator that it elects to terminate the book-entry system
with
respect to such Certificates through the Depository or (c) after the occurrence
and continuation of either of the events described in clauses (a) or (b) above,
Certificate Owners of such Book-Entry Certificates having not less than fifty
one percent (51%) of the Voting Rights evidenced by any Class of Book-Entry
Certificates advise the Securities Administrator and the Depository in writing
through the Depository Participants that the continuation of a book-entry system
with respect to Certificates of such Class through the Depository (or its
successor) is no longer in the best interests of the Certificate Owners of
such
Class, then the Securities Administrator shall notify all Certificate Owners
of
such Certificates, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to applicable Certificate
Owners requesting the same. The Depositor shall provide the Securities
Administrator with an adequate inventory of certificates to facilitate the
issuance and transfer of Definitive Certificates. Upon surrender to the
Securities Administrator of any such Certificates by the Depository, accompanied
by registration instructions from the Depository for registration, the
Securities Administrator shall countersign and deliver such Definitive
Certificates. Neither the Depositor nor the Securities Administrator shall
be
liable for any delay in delivery of such instructions and each may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of such 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 Securities Administrator, to the extent applicable
with respect to such Definitive Certificates and the Securities Administrator
shall recognize the Holders of such Definitive Certificates as
Certificateholders hereunder.
Section
6.09 Maintenance
of Office or Agency.
Certificates
may be surrendered for registration of transfer or exchange at the applicable
Corporate Trust Office of the Securities Administrator. The Securities
Administrator will give prompt written notice to the Certificateholders of
any
change in such location of any such office or agency.
ARTICLE
VII
THE
DEPOSITOR, GMACM AND THE MASTER SERVICER
Section
7.01 Liabilities
of the Depositor, GMACM and the Master Servicer.
Each
of
the Depositor, GMACM and the Master Servicer shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and
undertaken by it herein.
Section
7.02 Merger
or Consolidation of the Depositor, GMACM or the Master
Servicer.
(a) Each
of
the Depositor and GMACM will keep in full force and effect its rights and
franchises as a corporation and a limited liability company, respectively (or
other entity resulting from merger, conversion or consolidation to the extent
permitted under this Section 7.02) under the laws of the state of its
incorporation or formation, and
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 duties under this
Agreement.
The
Master Servicer will keep in full force and effect its existence, rights and
franchises as a national banking association, and 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 duties under this Agreement.
(b) The
Depositor, each Servicer or the Master Servicer may be merged, converted, or
consolidated, and any Person resulting from any merger, conversion, or
consolidation to which the Depositor, GMACM or the Master Servicer shall be
a
party, or any Person succeeding to the business of the Depositor, GMACM or
the
Master Servicer shall be the successor of the Depositor, GMACM or the Master
Servicer hereunder, without the execution or filing of any paper or further
act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided that any Successor Servicer shall have represented
that it meets the eligibility criteria set forth in
Section 8.02.
Section
7.03 Indemnification
of the Depositor and Servicing Function Participants.
(a) The
Depositor agrees to indemnify the Indemnified Persons for, and to hold them
harmless against, any loss, liability or expense (including reasonable legal
fees and disbursements of counsel) incurred on their part that may be sustained
in connection with, arising out of, or relating to, any claim or legal action
(including any pending or threatened claim or legal action) relating to this
Agreement or the Certificates (i) related to the Depositor’s failure to perform
its duties in compliance with this Agreement (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement) or (ii)
incurred by reason of the Depositor’s willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. This indemnity shall survive
the
resignation of and the termination of this Agreement.
(b) GMACM
agrees to indemnify the Indemnified Persons for, and to hold them harmless
against, any loss, liability or expense (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or relating to, any claim or legal action
(including any pending or threatened claim or legal action) relating to GMACM’s
gross negligence in the performance of its duties under this Agreement or
failure to service the related Mortgage Loans in material compliance with the
terms of this Agreement and for a material breach of any representation,
warranty or covenant of GMACM contained herein. GMACM shall immediately notify
the Trustee if a claim is made by a third party with respect to this Agreement
or the Mortgage Loans, assume (with the consent of the Trustee and with counsel
reasonably satisfactory to the Trustee) the defense of any such claim and pay
all expenses in connection therewith, including counsel fees, and promptly
appeal or pay, discharge and satisfy any judgment or decree which may be entered
against it or any Indemnified Person in respect of such claim, but failure
to so
notify GMACM shall not limit its obligations hereunder. GMACM agrees that it
will not enter into any settlement of any such claim without the consent of
the
Indemnified Persons unless such settlement includes an unconditional release
of
such Indemnified Persons from all liability that is the subject matter of such
claim. The provisions of this Section 7.03(b) shall survive termination of
this Agreement and the resignation or removal of GMACM.
(c) Each
of
the parties hereto shall cause any Servicing Function Participant engaged by
it
to indemnify and hold harmless GMACM, the Master Servicer, the Securities
Administrator, the Trustee, the Depositor and the Sponsor and their respective
directors, officers, employees, agents, and affiliates, as applicable, from
and
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (a) any breach by such party of any if its
obligations hereunder, including particularly its obligations to provide any
Assessment of Compliance, Attestation Report, Compliance Statement, Back-up
Certification or any information, data or materials required to be included
in
any Exchange Act report, (b) any material misstatement or material omission
in
any information, data or materials required to be contained in (i) any
compliance certificate delivered by the such party pursuant to Section 3.13
of this Agreement, (ii) any assessment or attestation delivered by such party
pursuant to Section 3.14 of this Agreement, (iii) any back-up certification
(in the form of Exhibit M) delivered by such party pursuant to Section 3.18
of this Agreement or (iv) any disclosure materials delivered by such party
pursuant to Section 5.16 or (c) the negligence, bad faith or willful
misconduct of such party in connection with its performance hereunder. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless GMACM, the Master Servicer, the Securities Administrator, the Trustee,
the Depositor and the Sponsor, then each such party agrees that it shall
contribute to the amount paid or payable by the Master Servicer, the Securities
Administrator, the Trustee, the Depositor and the Sponsor as a result of any
claims, losses, damages or liabilities incurred by Master Servicer, the
Securities Administrator, the Trustee, the Depositor and the Sponsor in such
proportion as is appropriate to reflect the relative fault of the Master
Servicer, the Securities Administrator, the Trustee, the Depositor and the
Sponsor on the one hand and such party on the other. This indemnity shall
survive the termination or resignation of the parties hereto or the termination
of this Agreement.
Section
7.04 Limitations
on Liability of the Depositor, Securities Administrator, Master Servicer,
Servicer and Others.
Subject
to the obligation of the Depositor, GMACM and Xxxxx Fargo to indemnify the
Indemnified Persons pursuant to Section 7.03:
(a) Neither
the Depositor, the Securities Administrator, the Master Servicer nor any of
the
directors, officers, employees or agents of the Depositor, the Securities
Administrator and the Master Servicer shall be under any liability to the
Indemnified Persons, the Trust Fund or the Certificateholders for taking any
action or for refraining from taking any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Securities Administrator, the Master
Servicer or any such Person against any breach of warranties, representations
or
covenants made herein or against any specific liability imposed on any such
Person pursuant hereto or against any liability which would otherwise be imposed
by reason of such Person’s willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations
and
duties hereunder.
(b) The
Depositor, the Securities Administrator, the Master Servicer and any director,
officer, employee or agent of the Depositor, the Securities Administrator and
the Master Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
(c) The
Depositor, the Securities Administrator, the Master Servicer, GMACM, the
Trustee, the Custodian and any director, officer, employee or agent of the
Depositor, the Securities Administrator, the Master Servicer, GMACM, the Trustee
or the Custodian shall be indemnified by the Trust Fund and held harmless
thereby against any loss, liability or expense (including reasonable legal
fees
and disbursements of counsel) incurred on their part that may be sustained
in
connection with, arising out of, or relating to this Agreement, the Custodial
Agreement or the Certificates (including any pending or threatened claim or
legal action), other than (i) with respect to GMACM, such loss, liability or
expense related to GMACM’s failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) or, with respect to the Custodian,
to
the Custodian’s failure to perform its duties hereunder, (ii) with respect to
GMACM, any such loss, liability or expense incurred by reason of GMACM’s willful
misfeasance, bad faith or gross negligence in the performance of its duties
hereunder or (iii) with respect to Custodian, any such loss, liability or
expense incurred by reason of the Custodian’s willful misfeasance, bad faith or
gross negligence in the performance of its duties hereunder.
(d) The
Depositor the Securities Administrator or the Master Servicer shall not be
under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties under this Agreement and that in its opinion may
involve it in any expense or liability; provided, however, that each of the
Depositor, the Securities Administrator and the Master Servicer 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 gross 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, the Securities
Administrator and the Master Servicer shall be entitled to be reimbursed
therefor out of the Distribution Account as provided by Section 3.32.
Nothing in this Subsection 7.04(d) shall affect the Master Servicer’s obligation
to take such actions as are necessary to ensure the servicing and administration
of the Mortgage Loans pursuant to this Agreement.
(e) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Trustee shall
not
be required to investigate or make recommendations concerning potential
liabilities which the Trust Fund might incur as a result of such course of
action by reason of the condition of the Mortgaged Properties.
(f) The
Trustee shall not be liable for any acts or omissions of any Servicer, the
Depositor or the Custodian.
Section
7.05 Servicers
Not to Resign.
(a) GMACM
shall not resign from the obligations and duties hereby imposed on it except
upon the determination that its duties hereunder are no longer permissible
under
applicable law or the performance of such duties are no longer possible in
order
to comply with applicable law and such incapacity or impossibility cannot be
cured by GMACM. Any determination permitting the resignation of GMACM shall
be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer which Opinion of Counsel shall be in form and substance acceptable
to
the Master Servicer. No appointment of a successor to GMACM shall be effective
hereunder unless (a) the Rating Agencies have confirmed in writing that such
appointment will not result in a downgrade, qualification or withdrawal of
the
then current ratings assigned to the Certificates, (b) such successor shall
have
represented that it is meets the eligibility criteria set forth in
Section 8.02 and (c) such successor has agreed in writing to assume the
obligations of GMACM hereunder. GMACM shall provide a copy of the written
confirmation of the Rating Agencies and the agreement executed by such successor
to the Master Servicer. No such resignation shall become effective until a
successor servicer or the Master Servicer shall have assumed GMACM’s
responsibilities and obligations hereunder. GMACM shall notify the Master
Servicer and the Rating Agencies of its resignation.
(b) Except
as
expressly provided herein, GMACM shall not 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 GMACM hereunder. The
foregoing prohibition on assignment shall not prohibit GMACM from designating
a
Subservicer as payee of any indemnification amount payable to GMACM hereunder;
provided, however, that as provided in Section 3.03, no Subservicer or
Subcontractor shall be a third-party beneficiary hereunder and the parties
hereto shall not be required to recognize any Subservicer or Subcontractor
as an
indemnitee under this Agreement.
Section
7.06 Termination
of GMACM Without Cause; Appointment of Special Servicer.
(a) For
so
long as the Sponsor retains ownership of the servicing rights with respect
to
any of the Mortgage Loans, the Sponsor may, at its option, terminate the
servicing responsibilities of GMACM hereunder with respect to such Mortgage
Loans without cause. No such termination shall become effective unless and
until
a successor to such Servicer shall have been appointed to service and administer
the related Mortgage Loans pursuant to the terms and conditions of this
Agreement. No appointment shall be effective unless (i) such successor servicer
meets the eligibility criteria contained in Section 8.02, (ii) the Master
Servicer shall have consented to such appointment, (iii) the Rating Agencies
have been notified in writing of such appointment and such successor servicer
meets the Minimum Servicing Requirements, (iv) such successor has agreed to
assume the obligations of GMACM hereunder to the extent of the related Mortgage
Loans and (v) all amounts reimbursable to GMACM pursuant to the terms of this
Agreement shall have been paid to GMACM by the successor appointed pursuant
to
the terms of this Section 7.06 or by the Sponsor including without
limitation, all unreimbursed Advances and Servicing Advances made by GMACM
and
all out-of-pocket expenses of GMACM incurred in connection with the transfer
of
servicing to such successor. The Sponsor shall provide a copy of the written
confirmation of the Rating Agencies and the agreement executed by such successor
to the Trustee and the Master Servicer.
The
rights of the Sponsor to terminate GMACM pursuant to this Section 7.06(a)
will cease to exist if the Sponsor sells or otherwise divests itself of its
ownership of the servicing rights with respect to the Mortgage Loans; provided,
however, that this Section 7.06(a) will be operative at any time the
Sponsor retains or comes into possession of such servicing rights.
(b) In
addition, the Sponsor may, at its option, appoint a special servicer with
respect to certain of the Mortgage Loans. The Sponsor and GMACM shall negotiate
in good faith with any proposed special servicer with respect to the duties
and
obligations of such special servicer with respect to any such Mortgage Loan.
Any
Subservicing Agreement shall contain terms and provisions not inconsistent
with
this Agreement and shall obligate the special servicer to service such Mortgage
Loans in accordance with Accepted Servicing Practices. The fee payable to the
special servicer for the performance of such duties and obligations will paid
from the Servicing Fee collected by GMACM with respect to each such Mortgage
Loan and will be remitted to such special servicer by GMACM.
Section
7.07 Limitation
on Resignation of the Master Servicer.
The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination pursuant to the
preceding sentence permitting the resignation of the Master Servicer shall
be
evidenced by an Opinion of Counsel to such effect obtained at the expense of
the
Master Servicer and delivered to the Trustee and the Rating Agencies. No
resignation of the Master Servicer shall become effective until the Trustee
or a
successor Master Servicer meeting the criteria specified in Section 7.08
shall have assumed the Master Servicer’s responsibilities, duties, liabilities
(other than those liabilities arising prior to the appointment of such
successor) and obligations under this Agreement.
Section
7.08 Assignment
of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in its entirety as Master Servicer under this Agreement; provided,
however, that: (i) the purchaser or transferee accepting such assignment and
delegation and assuming the obligations of the Master Servicer hereunder (a)
shall have a net worth of not less than $15,000,000 (unless otherwise approved
by each Rating Agency pursuant to clause (ii) below); (b) shall be reasonably
satisfactory to the Trustee (as evidenced in a writing signed by the Trustee);
and (c) shall execute and deliver to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by it as master servicer
under this Agreement, any custodial agreement from and after the effective
date
of such agreement; (ii) each Rating Agency shall be given prior written notice
of the identity of the proposed successor to the Master Servicer and each Rating
Agency’s rating of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or withdrawn
as a result of such assignment, sale and delegation, as evidenced by a letter
to
such effect delivered to the Master Servicer and the Trustee; and (iii) the
Master Servicer assigning the master servicing shall deliver to the Trustee
an
officer’s certificate and an Opinion of Independent counsel, each stating that
all conditions precedent to such action under this Agreement have been completed
and such action is permitted by and complies with the terms of this Agreement.
No such assignment or delegation shall affect any liability of the Master
Servicer arising out of acts or omissions prior to the effective date
thereof.
Section
7.09 Rights
of the Depositor in Respect of GMACM and the Master Servicer.
Each
of
the Master Servicer and GMACM shall afford (and any Subservicing Agreement
shall
provide that each Subservicer or Subcontractor shall afford) the Depositor
and
the Trustee, upon reasonable notice, during normal business hours, access to
all
records maintained by the Master Servicer or GMACM (and any such Subservicer
or
Subcontractor) in respect of GMACM’s rights and obligations hereunder and access
to officers of the Master Servicer or GMACM (and those of any such Subservicer
or Subcontractor) responsible for such obligations, and the Master Servicer
shall have access to all such records maintained by GMACM and any Subservicers.
Upon request, each of the Master Servicer and GMACM shall furnish to the
Depositor and the Trustee its (and any such Subservicer’s or Subcontractor’s)
most recent financial statements and such other information relating to the
Master Servicer’s or GMACM’s capacity to perform its obligations under this
Agreement as it possesses (and that any such Subservicer or Subcontractor
possesses). To the extent the Depositor and the Trustee are informed that such
information is not otherwise available to the public, the Depositor and the
Trustee shall not disseminate any information obtained pursuant to the preceding
two sentences without the Master Servicer’s or GMACM’s written consent, except
as required pursuant to this Agreement or to the extent that it is appropriate
to do so (i) to its legal counsel, auditors, taxing authorities or other
governmental agencies and the Certificateholders, (ii) pursuant to any law,
rule, regulation, order, judgment, writ, injunction or decree of any court
or
governmental authority having jurisdiction over the Depositor and the Trustee
or
the Trust Fund, and in any case, the Depositor or the Trustee, (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, GMACM or the
Master 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, registration statement or contract or other document pertaining to
the
transactions contemplated by the Agreement approved in advance by the Depositor,
GMACM or the Master 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. Nothing
in
this Section 7.09 shall limit the obligation of GMACM to comply with any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of GMACM to provide access as provided in this Section 7.09
as a result of such obligation shall not constitute a breach of this Section.
Nothing in this Section 7.09 shall require GMACM to collect, create,
collate or otherwise generate any information that it does not generate in
its
usual course of business. GMACM shall not be required to make copies of or
ship
documents to any party unless provisions have been made for the reimbursement
of
the costs thereof. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer and GMACM under this Agreement and may,
but
is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer or GMACM under this Agreement or exercise
the
rights of the Master Servicer or GMACM under this Agreement; provided that
neither the Master Servicer nor GMACM shall 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 the Master Servicer or GMACM and is not
obligated to supervise the performance of the Master Servicer or GMACM under
this Agreement or otherwise.
ARTICLE
VIII
DEFAULT;
TERMINATION OF SERVICER AND MASTER SERVICER
Section
8.01 Events
of Default.
(a) In
case
one or more of the following events of default by GMACM, or Xxxxx Fargo with
respect to 8.01(a)(xi) (each, a “Servicer Default”), shall occur and be
continuing, that is to say:
(i) any
failure by GMACM to remit to the Securities Administrator any payment required
to be made under the terms of this Agreement which continues unremedied for
a
period of two (2) Business Days; or
(ii) failure
on the part of GMACM
to
duly
observe or perform in any material respect any other of the covenants or
agreements on the part of GMACM set forth in this Agreement (other than those
described in (vii) and (vii) below), the breach of which has a material adverse
effect and which continue unremedied for a period of thirty days after the
date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to GMACM by the Master Servicer or to such Servicer and
the Master Servicer by the holders of Certificates evidencing not less than
twenty-five percent (25%) of the Voting Rights evidenced by the Certificates;
or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against GMACM and such decree or order shall have remained
in
force undischarged or unstayed for a period of sixty days; or
(iv) GMACM
shall consent to the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to GMACM or of or relating
to
all or substantially all of its property; or
(v) GMACM
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) GMACM
attempts to assign its right to servicing compensation hereunder (other than
any
payment by GMACM to the Sponsor of any portion of the Servicing Fee payable
to
GMACM as provided in a separate side letter between the Sponsor and such
Servicer) or GMACM attempts to sell or otherwise dispose of all or substantially
all of its property or assets or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any portion
thereof except, in each case as otherwise permitted herein; or
(vii) GMACM
ceases to be qualified to transact business in any jurisdiction where it is
currently so qualified, but only to the extent such non-qualification materially
and adversely affects GMACM’s ability to perform its obligations
hereunder;
(viii) so
long
as the Trust Fund is subject to Exchange Act reporting requirements, failure
by
GMACM to duly perform, within the required time period, its obligations under
Sections 3.13, 3.14, 3.18 or 5.16, which default shall not be subject to
notice or a cure period;
(ix) after
the
Trust Fund ceases to be subject to Exchange Act reporting requirements, any
failure by GMACM to duly perform, within the required time period, its
obligation to provide the annual statements of compliance and attestation
reports described in Sections 3.13 and 3.14 hereof, which failure continues
unremedied for a period of ten (10) Business Days after the date on which
written notice of such failure, requiring the same to be remedied, has been
given to GMACM by the Master Servicer;
(x) any
failure by GMACM (or any successor thereto) to provide, within the required
time
period set forth in Section 3.28 hereof, any required reports or data
pertaining to the GMACM Mortgage Loans, which failure continues unremedied
for a
period of thirty (30) days after the date on which written notice of such
failure, requiring the same to be remedied, has been given to GMACM (or any
successor thereto) by the Master Servicer; or
(xi) with
respect to Xxxxx Fargo only, an event of default by Xxxxx Fargo under the
Servicing Agreement
then,
and
in each and every such case, so long as a Servicer Default with respect to
GMACM
shall not have been remedied, the Master Servicer, by notice in writing to
the
Servicer shall with respect to a payment default by such Servicer pursuant
to
Section 8.01(i) of this Agreement and, upon the occurrence and continuance
of any other Servicer Default with respect to GMACM may, and, at the written
direction of Certificateholders evidencing not less than 25% of the Voting
Rights shall, in addition to whatever rights the Trustee on behalf of the
Certificateholders may have under Section 7.03 of this Agreement and at law
or equity to damages, including injunctive relief and specific performance,
terminate all the rights and obligations of GMACM under this Agreement and
in
and to the GMACM Mortgage Loans and the proceeds thereof without compensating
GMACM for the same with respect to a default by GMACM. In connection with the
occurrence of a Servicer Default by Xxxxx Fargo which shall not have been
remedied, the Master Servicer shall notify the Trustee and the Trustee, by
notice in writing to such Servicer, shall with respect to a payment default
by
such Servicer pursuant to Section 8.01(a)(xi) of this Agreement, and upon
the occurrence and continuance of any other Servicer Default by such Servicer,
may, and at the written direction of Certificateholders evidencing not less
than
25% of the Voting Rights shall, in addition to whatever rights the Trustee
on
behalf of the Certificateholders may have under the Servicing Agreement and
at
law or equity to damages, including injunctive relief and specific performance,
terminate the rights and obligations of such Servicer under the Servicing
Agreement and in and to the Xxxxx Fargo Mortgage Loans and the proceeds thereof
without compensating Xxxxx Fargo for the same with respect to a default by
Xxxxx
Fargo. On or after the receipt by such Servicer of such written notice, all
authority and power of the defaulting Servicer under this Agreement or the
Servicing Agreement, as applicable whether with respect to the related Mortgage
Loans or otherwise, shall pass to and be vested in the Master Servicer or,
if
Xxxxx Fargo is the defaulting Servicer, the Trustee. Upon written request from
the Master Servicer or the Trustee, as applicable, the defaulting Servicer
shall
prepare, execute and deliver, any and all documents and other instruments,
place
in the Trustee’s (or its Custodian’s) possession all Mortgage Files relating to
the related Mortgage Loans, and 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 related
Mortgage Loans and related documents, or otherwise, at such Servicer’s sole
expense. The defaulting Servicer shall cooperate with the Master Servicer or
the
Trustee, as applicable in effecting the termination of such Servicer’s
responsibilities and rights hereunder or under the Servicing Agreement, as
applicable, including, without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by
the defaulting Servicer to the related Custodial Account or Escrow Account
or
thereafter received with respect to the related Mortgage Loans or any related
REO Property (provided, however, that the defaulting Servicer shall continue
to
be entitled to receive all amounts accrued or owing to it under this Agreement
or the Servicing Agreement, as applicable, on or prior to the date of such
termination, whether in respect of Advances, Servicing Advances, accrued and
unpaid Servicing Fees or otherwise, and shall continue to be entitled to the
benefits of Section 7.04 of this Agreement or the benefits under the
Servicing Agreement, as applicable, notwithstanding any such termination, with
respect to events occurring prior to such termination). Neither Master Servicer
nor the Trustee shall have knowledge of a Servicer Default unless a Responsible
Officer of the Master Servicer or the Trustee, as applicable, has actual
knowledge or unless written notice of any Servicer Default is received by the
Master Servicer or the Trustee, as applicable, at its address for notice and
such notice references the Certificates, the Trust Fund or this
Agreement.
(b) In
case
one or more of the following events of default by the Master Servicer (each,
a
“Master Servicer Default”) shall occur and be continuing, that is to
say:
(i) any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement, or the breach by the Master
Servicer of any representation and warranty contained in Section 2.03,
which continues unremedied for a period of thirty (30) days after the date
on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by the Depositor or the Trustee or to
the
Master Servicer, the Depositor and the Trustee by the Holders of Certificates
entitled to at least twenty-five percent (25%) of the Voting Rights;
or
(ii) 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 the Master Servicer
and such decree or order shall have remained in force undischarged or unstayed
for a period of ninety (90) days; or
(iii) the
Master 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
(iv) the
Master 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
(v) so
long
as the Trust Fund is subject to Exchange Act reporting requirements, failure
by
the Master Servicer to duly perform, within the required time period, its
obligations under Sections 3.13, 3.14, 3.18 or 5.16.
If
a
Master Servicer Default shall occur, then, and in each and every such case,
so
long as such Master Servicer Default shall not have been remedied, the Depositor
or the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of Voting Rights, the Trustee shall, by notice in
writing to the Master Servicer (and to the Depositor if given by the Trustee
or
to the Trustee if given by the Depositor) with a copy to each Rating Agency,
terminate all of the rights and obligations of the Master Servicer in its
capacity as Master Servicer under this Agreement, to the extent permitted by
law, and in and to the Mortgage Loans and the proceeds thereof. On or after
the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Mortgage Loans
or otherwise including, without limitation, the compensation payable to the
Master Servicer under this Agreement, 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 Master 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 Master 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 the Master Servicer’s functions under this Agreement, and to cooperate
with the Trustee in effecting the termination of the Master Servicer’s
responsibilities and rights under this Agreement (provided, however, that the
Master 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
and
shall continue to be entitled to the benefits of Section 7.03,
notwithstanding any such termination, with respect to events occurring prior
to
such termination). For purposes of this Section 8.01, the Trustee shall not
be deemed to have knowledge of a Master Servicer 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 Master Servicer Default is received by the Trustee and such
notice references the Certificates, the Trust Fund or this Agreement. The
Trustee shall promptly notify the Rating Agencies of the occurrence of a Master
Servicer Default of which it has knowledge as provided above.
Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act, petition a court of competent jurisdiction
to
appoint, or appoint on its own behalf any established housing and home finance
institution servicer, master servicer, servicing or mortgage servicing
institution having a net worth of not less than $15,000,000 and meeting such
other standards for a successor master servicer as are set forth in this
Agreement, as the successor to such Master Servicer in the assumption of all
of
the responsibilities, duties or liabilities of a master servicer, like the
Master Servicer.
To
the
extent that the costs and expenses of the Trustee related to the termination
of
the Master Servicer, appointment of a successor Master Servicer or the transfer
and assumption of the master servicing by the Trustee (including, without
limitation, (i) all legal costs and expenses and all due diligence costs and
expenses associated with an evaluation of the potential termination of the
Master Servicer as a result of a Master Servicer Default and (ii) all costs
and
expenses associated with the complete transfer of the master servicing,
including all servicing files and all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
successor Master Servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor Master Servicer to master
service the Mortgage Loans in accordance with this Agreement) are not fully
and
timely reimbursed by the terminated Master Servicer, the Trustee shall be
entitled to reimbursement of such costs and expenses from the Distribution
Account. Neither the Trustee nor any other successor master servicer shall
be
deemed to be in default hereunder by reason of any failure to make, or any
delay
in making, any distribution hereunder or any portion thereof or any failure
to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused by the failure of the Master Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it. Furthermore, neither the Trustee nor any other
successor master servicer shall be liable for any acts or omissions of the
terminated Master Servicer.
Section
8.02 Master
Servicer or Trustee to Act; Appointment of Successor.
On
and
after the time a Servicer receives a notice of termination pursuant to
Section 8.01 of this Agreement or pursuant to the Servicing Agreement, the
Master Servicer or, if Xxxxx Fargo is the defaulting Servicer, the Trustee,
shall become the successor to such Servicer with respect to the transactions
set
forth or provided for herein and after a transition period (not to exceed 90
days), shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the terminated Servicer by the terms and provisions
hereof or the Servicing Agreement, as applicable, and applicable law including
the obligation to make Advances pursuant to Article V hereof or the Servicing
Agreement, as applicable, except as otherwise provided herein or therein;
provided, however, that the Master Servicer’s or the Trustee’s obligation to
make Advances in its capacity as Successor Servicer shall not be subject to
such
90-day transition period and the Master Servicer or the Trustee, as applicable,
will make any Advance required to be made by the terminated Servicer on the
Distribution Date on which the terminated Servicer was required to make such
Advance. Effective on the date of such notice of termination, as compensation
therefor, the Master Servicer or the Trustee, as applicable, shall be entitled
to all fees, costs and expenses relating to the related Mortgage Loans that
the
terminated Servicer would have been entitled to if it had continued to act
hereunder or under the Servicing Agreement, as applicable, provided, however,
that neither the Master Servicer nor the Trustee shall be (i) liable for any
acts or omissions of the terminated Servicer, (ii) obligated to make Advances
if
it is prohibited from doing so under applicable law or determines that such
Advance, if made, would constitute a Nonrecoverable Advance, (iii) responsible
for expenses of the terminated Servicer pursuant to Section 2.03 of this
Agreement or pursuant to the Servicing Agreement or (iv) obligated to deposit
losses on any Permitted Investment directed by the terminated Servicer.
Notwithstanding the foregoing, the Master Servicer or the Trustee, as
applicable, may, if it shall be unwilling to so act, or shall, if it is
prohibited by applicable law from making Advances pursuant to Article VI of
this
Agreement or if it is otherwise unable to so act, appoint, or petition a court
of competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which does not adversely affect the then current
rating of the Certificates by each Rating Agency as the successor to the
terminated Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the terminated Servicer hereunder
or
under the Servicing Agreement. Any Successor Servicer shall (i) be an
institution that is a Xxxxxx Xxx and Xxxxxxx Mac approved seller/servicer in
good standing, that has a net worth of at least $15,000,000 and (ii) be willing
to act as successor servicer of the related Mortgage Loans under this Agreement
or under the Servicing Agreement, and shall have executed and delivered to
the
Depositor and the Trustee an agreement accepting such delegation and assignment,
that contains an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of the terminated Servicer (other
than any liabilities of the terminated Servicer hereof incurred prior to
termination of such Servicer under Section 8.01 of this Agreement or under
the Servicing Agreement, as applicable), with like effect as if originally
named
as a party to this Agreement or under the Servicing Agreement, provided that
each Rating Agency shall have acknowledged in writing that its rating of the
Certificates in effect immediately prior to such assignment and delegation
will
not be qualified or reduced as a result of such assignment and delegation.
If
the Master Servicer assumes the duties and responsibilities of the terminated
Servicer in accordance with this Section 8.02, the Master Servicer or the
Trustee, as applicable, shall not resign as servicer until a Successor Servicer
has been appointed and has accepted such appointment. Pending appointment of
a
successor to the terminated Servicer hereunder or under this Servicing
Agreement, the Master Servicer or the Trustee, as applicable, unless such party
is prohibited by law from so acting, shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Master
Servicer or the Trustee, as applicable, may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans or
otherwise as it and such successor shall agree; provided that no such
compensation shall be in excess of that permitted the terminated Servicer
hereunder or under this Servicing Agreement. The Master Servicer or the Trustee,
as applicable and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither
the
Master Servicer nor any other Successor Servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making,
any
distribution hereunder or any portion thereof or any failure to perform, or
any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the terminated Servicer to deliver or provide, or
any
delay in delivering or providing, any cash, information, documents or records
to
it.
The
costs
and expenses of the Master Servicer or the Trustee, as applicable, in connection
with the termination of the terminated Servicer, appointment of a Successor
Servicer and, if applicable, any transfer of servicing, including, without
limitation, all costs and expenses associated with the complete transfer of
all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Master Servicer or the Trustee, as applicable,
to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Master Servicer, the Trustee or the Successor Servicer to service
the
related Mortgage Loans properly and effectively, to the extent not paid by
the
terminated Servicer as may be required herein shall be payable to the Master
Servicer or the Trustee, as applicable, from the Distribution Account pursuant
to Section 3.32. Any successor to the terminated Servicer as successor
servicer under this Agreement shall give notice to the applicable Mortgagors
of
such change of servicer and shall, during the term of its service as successor
servicer maintain in force the policy or policies that the terminated Servicer
is required to maintain pursuant to Section 3.05 of this Agreement or
pursuant to the Servicing Agreement. Notwithstanding anything herein to the
contrary, in no event shall the Trustee be liable for any Master Servicing
Fee
or Servicing Fee or for any differential in the amount of the Master Servicing
Fee or Servicing Fee paid hereunder or under any Servicing Agreement, as
applicable, and the amount necessary to induce any successor master servicer
or
successor servicer to act as successor master servicer or successor servicer
under this Agreement or any Servicing Agreement, as applicable, and the
transactions set forth or provided for herein.
Section
8.03 Notification
to Certificateholders.
(a) Upon
any
termination of or appointment of a successor to a Servicer or the Master
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within
sixty (60) days after the occurrence of any Servicer Default or Master Servicer
Default, the Trustee shall transmit by mail to all Certificateholders notice
of
each such Servicer Default or Master Servicer Default hereunder known to the
Trustee, unless such default shall have been cured or waived.
Section
8.04 Waiver
of Servicer Defaults and Master Servicer Defaults.
The
Trustee may waive only by written notice from Certificateholders evidencing
66-2/3% of the Voting Rights (unless such default materially and adversely
affects all Certificateholders, in which case the written direction shall be
from all of the Certificateholders) any default by a Servicer or the Master
Servicer in the performance of its obligations hereunder or under the Servicing
Agreement and its consequences. Upon any such waiver of a past default, such
default shall cease to exist, and any Servicer Default or Master Servicer
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived in writing.
ARTICLE
IX
CONCERNING
THE TRUSTEE AND SECURITIES ADMINISTRATOR
Section
9.01 Duties
of Trustee and Securities Administrator.
(a) The
Trustee, prior to the occurrence of a Servicer Default with respect to Xxxxx
Fargo or a Master Servicer Default, and after the curing or waiver of all
Servicer Defaults with respect to Xxxxx Fargo and all Master Servicer Defaults,
which may have occurred, and the Securities Administrator each undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement as duties of the Trustee and the Securities Administrator,
respectively. If a Servicer Default with respect to Xxxxx Fargo or a Master
Servicer Default has occurred and has not been cured or waived, 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.
(b) Each
of
the Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement. If any such
instrument is found not to conform to the requirements of this Agreement in
a
material manner, the Trustee or the Securities Administrator, as the case may
be, shall take such action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to its satisfaction, the
Securities Administrator will provide notice to the Trustee thereof and the
Trustee will provide notice to the Certificateholders.
(c) The
Trustee shall promptly remit to the related Servicer any complaint, claim,
demand, notice or other document (collectively, the “Notices”) delivered to the
Trustee as a consequence of the assignment of any Mortgage Loan hereunder and
relating to the servicing of the Mortgage Loans; provided than any such notice
(i) is delivered to the Trustee at its Corporate Trust Office, (ii) contains
information sufficient to permit the Trustee to make a determination that the
real property to which such document relates is a Mortgaged Property. The
Trustee shall have no duty hereunder with respect to any Notice it may receive
or which may be alleged to have been delivered to or served upon it unless
such
Notice is delivered to it or served upon it at its Corporate Trust Office and
such Notice contains the information required pursuant to clause (ii) of the
preceding sentence.
(d)
No
provision of this Agreement shall be construed to relieve the Trustee or the
Securities Administrator 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 Default with respect to Xxxxx Fargo or a Master
Servicer Default and after the curing or waiver of all such Servicer Defaults
with respect to Xxxxx Fargo and all Master Servicer Defaults which may have
occurred with respect to the Trustee and at all times with respect to the
Securities Administrator, the duties and obligations of the Trustee and the
Securities Administrator shall be determined solely by the express provisions
of
this Agreement, neither the Trustee nor the Securities Administrator shall
be
liable except for the performance of its 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 or the Securities
Administrator and, in the absence of bad faith on the part of the Trustee or
the
Securities Administrator, respectively, the Trustee or the Securities
Administrator, respectively, may conclusively rely and shall be fully protected
in acting or refraining from acting, as to the truth of the statements and
the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee or the Securities Administrator, respectively, that
conform to the requirements of this Agreement;
(ii) Neither
the Trustee nor the Securities Administrator shall be liable in its individual
capacity for an error of judgment made in good faith by a Responsible Officer
or
Responsible Officers of the Trustee or an officer or officers of the Securities
Administrator, respectively, unless it shall be proved that the Trustee or
Securities Administrator, respectively, was negligent in ascertaining the
pertinent facts;
(iii) Neither
the Trustee nor the Securities Administrator shall be liable with respect to
any
action taken, suffered or omitted to be taken by it in good faith and believed
by it to be authorized or within the rights or powers conferred upon it by
this
Agreement or in accordance with the directions of the Holders of Certificates
evidencing not less than 25% of the aggregate Voting Rights of the Certificates,
if such action or non-action relates to the time, method and place of conducting
any proceeding for any remedy available to the Trustee or the Securities
Administrator or exercising any trust or other power conferred upon the Trustee
or the Securities Administrator under this Agreement;
(iv) The
Trustee shall not be required to take notice or be deemed to have notice or
knowledge of any default, Servicer Default with respect to Xxxxx Fargo or Master
Servicer Default unless a Responsible Officer of the Trustee shall have actual
knowledge thereof. In the absence of such notice, the Trustee may conclusively
assume there is no such default, Servicer Default with respect to Xxxxx Fargo
or
Master Servicer Default;
(v) The
Trustee shall not in any way be liable by reason of any insufficiency in any
Account held by or in the name of Trustee unless it is determined by a court
of
competent jurisdiction that the Trustee’s gross negligence or willful misconduct
was the primary cause of such insufficiency (except to the extent that the
Trustee is obligor and has defaulted thereon);
(vi) Anything
in this Agreement to the contrary notwithstanding, in no event shall the Trustee
or the Securities Administrator be liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Trustee or the Securities Administrator has been
advised of the likelihood of such loss or damage and regardless of the form
of
action and whether or not any such damages were foreseeable or contemplated;
and
(vii) None
of
the Sponsor, the Depositor or the Trustee shall be responsible for the acts
or
omissions of the other, it being understood that this Agreement shall not be
construed to render them partners, joint venturers or agents of one
another.
Neither
the Trustee (regardless of the capacity in which it is acting) nor the
Securities Administrator shall be required to expend or risk its own funds
or
otherwise incur liability, financial or otherwise, in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee or the Securities Administrator to perform, or be
responsible for the manner of performance of, any of the obligations of the
terminated Servicer hereunder.
(e) All
funds
received by the Securities Administrator and required to be deposited in the
Distribution Account pursuant to this Agreement will be promptly so deposited
by
the Securities Administrator.
Section
9.02 Certain
Matters Affecting the Trustee and Securities Administrator.
(a) Except
as
otherwise provided in Section 9.01:
(i) The
Trustee and the Securities Administrator may conclusively rely and shall be
fully protected in acting or refraining from acting in reliance on any
resolution or certificate of the Sponsor, the Depositor or the Servicers, any
certificates of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper
or document believed by it to be genuine and to have been signed or presented
by
the proper party or parties;
(ii) The
Trustee and the Securities Administrator may consult with counsel and any advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel:
(iii) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement, other
than
its obligation to give notices pursuant to 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 pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered to the
Trustee or the Securities Administrator, as the case may be, reasonable security
or indemnity 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 Default with respect to Xxxxx Fargo or a Master Servicer Default of
which a Responsible Officer of the Trustee has actual knowledge (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 his own affairs;
(iv) Neither
the Trustee nor the Securities Administrator shall be liable in its individual
capacity 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 Default with respect to Xxxxx Fargo or a Master
Servicer Default hereunder and after the curing or waiver of all Servicer
Defaults with respect to Xxxxx Fargo or all Master Servicer Defaults which
may
have occurred with respect to the Trustee and at all times with respect to
the
Securities Administrator, neither the Trustee nor the Securities Administrator
shall 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 Holders of Certificates evidencing not less
than twenty-five percent (25%) of the aggregate Voting Rights of the
Certificates and provided that the payment within a reasonable time to the
Trustee or the Securities Administrator 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 or the Securities Administrator, as applicable, not
reasonably assured to the Trustee or the Securities Administrator, as
applicable, by the security afforded to it by the terms of this Agreement,
the
Trustee or the Securities Administrator, as applicable, may require reasonable
indemnity against such expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid by the
Certificateholders requesting the investigation;
(vi) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or through Affiliates, nominees, custodians, agents
or
attorneys. The Trustee shall not be liable or responsible for the misconduct
or
negligence of any of the Trustee’s agents or attorneys or paying agent appointed
hereunder by the Trustee with due care;
(vii) Should
the Trustee deem the nature of any action required on its part to be unclear,
the Trustee may require prior to such action that it be provided by the
Depositor with reasonable further instructions; the right of the Trustee to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be accountable for other than
its
gross negligence or willful misconduct in the performance of any such
act;
(viii) The
Trustee shall not be required to give any bond or surety with respect to the
execution of the trust created hereby or the powers granted
hereunder;
(ix) The
Trustee shall not have any duty to conduct any affirmative investigation as
to
the occurrence of any condition requiring the repurchase of any Mortgage Loan
by
any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan
for purposes of this Agreement;
(x) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided, however that the Trustee
shall promptly remit to the Servicer upon receipt any such complaint, claim,
demand, notice or other document (i) which is delivered to the Trustee at is
Corporate Trust Office, (ii) of which a Responsible Officer has actual knowledge
and (iii) which contains information sufficient to permit the Trustee to make
a
determination that the real property to which such document relates is a
Mortgaged Property; and
(xi) The
Trustee, not in its individual capacity but solely in its separate capacity
as
Supplemental Interest Trust Trustee, is hereby directed to execute and deliver
the Group I Swap Agreement and the Group II Swap Agreement on behalf of Party
B
(as defined therein) and to exercise the rights, perform the obligations, and
make the representations of Party B thereunder, solely in its capacity as
Supplemental Interest Trust Trustee on behalf of Party B (as defined therein)
and not in its individual capacity.
The
Certificateholders (by acceptance of their Certificates) acknowledge and agree
that:
(a)
the
Supplemental Interest Trust Trustee shall execute and deliver the Group I Swap
Agreement and the Group II Swap Agreement on behalf of Party B (as defined
therein),
(b)
the
Supplemental Interest Trust Trustee shall exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely in
its
capacity as Supplemental Interest Trust Trustee on behalf of Party B (as defined
therein) and not in its individual capacity, and
(c)
the
Securities Administrator shall also be entitled to exercise the rights and
obligated to perform the obligations of Party B under the Group I Swap Agreement
and the Group II Swap Agreement.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall apply to the Trustee’s
execution, as Supplemental Interest Trust Trustee of the Group I Swap Agreement
and the Group II Swap Agreement, and the performance of its duties and
satisfaction of its obligations thereunder.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Securities Administrator shall apply to the
Securities Administrator’s performance of its duties and satisfaction of its
obligations under the Group I Swap Agreement and the Group II Swap
Agreement.
(xii) None
of
the Securities Administrator, the Master Servicer, the Servicer, the Sponsor,
the Depositor, the Custodian or the Trustee shall be responsible for the acts
or
omissions of the others or of the Swap Providers, it being understood that
this
Agreement shall not be construed to render them partners, joint venturers or
agents of one another.
(xiii) The
Trustee is hereby directed to execute and deliver the Cap Contracts on behalf
of
Party B (as defined therein) and to exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely in
its
capacity as Trustee on behalf of Party B (as defined therein) and not in its
individual capacity.
The
Certificateholders (by acceptance of their Certificates) acknowledge and agree
that:
(a)
the
Trustee shall execute and deliver the Cap Contracts on behalf of Party B (as
defined therein),
(b)
the
Trustee shall exercise the rights, perform the obligations, and make the
representations of Party B thereunder, solely in its capacity as Trustee on
behalf of Party B (as defined therein) and not in its individual capacity,
and
(c)
the
Securities Administrator shall also be entitled to exercise the rights and
obligated to perform the obligations of Party B under the Cap
Contracts.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall apply to the Trustee’s execution
(as Supplemental Interest Trust Trustee) of the Cap Contracts, and the
performance of its duties and satisfaction of its obligations
thereunder.
Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Securities Administrator shall apply to the
Securities Administrator’s performance of its duties and satisfaction of its
obligations under the Cap Contracts.
Section
9.03 Trustee
and Securities Administrator not Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the signature
of
the Securities Administrator, the authentication of the Securities Administrator
on the Certificates, the acknowledgements of the Trustee contained in Article
II
and the representations and warranties of the Trustee in Section 9.12)
shall be taken as the statements of the Depositor, and neither the Trustee
nor
the Securities Administrator assumes any responsibility for their correctness.
Neither the Trustee nor the Securities Administrator makes any representations
or warranties as to the validity or sufficiency (other than as specifically
set
forth in Section 9.12) of the Cap Contracts, the Swap Agreements, the
Certificates (other than the signature of the Securities Administrator and
authentication of the Securities Administrator on the Certificates) or of any
Mortgage Loan except as expressly provided in Section 2.02. The Securities
Administrator’s signature and authentication (or authentication of its agent) on
the Certificates shall be solely in its capacity as Securities Administrator
and
shall not constitute the Certificates an obligation of the Securities
Administrator in any other capacity. The Trustee and the Securities
Administrator 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 with respect
to
the Mortgage Loans.
Section
9.04 Trustee
and Securities Administrator May Own Certificates.
Each
of
the Trustee and the Securities Administrator in its individual capacity or
in
any other capacity other than as Trustee or Securities Administrator hereunder
may become the owner or pledgee of any Certificates and may transact business
with other interested parties and their Affiliates with the same rights it
would
have if it were not the Trustee or the Securities Administrator.
Section
9.05 Fees
and Expenses of Trustee and Securities Administrator.
The
fees
of the Trustee and the Securities Administrator hereunder shall be paid in
accordance with a side letter agreement with the Master Servicer and at the
sole
expense of the Master Servicer. In addition, the Trustee, the Securities
Administrator, the Custodian and any director, officer, employee or agent of
the
Trustee, the Securities Administrator and the Custodian shall be indemnified
by
the Trust Fund and held harmless against any loss, liability or expense
(including reasonable attorney’s fees and expenses) incurred by the Trustee, the
Custodian or the Securities Administrator including any pending or threatened
claim or legal action arising out of or in connection with the acceptance or
administration of its respective obligations and duties under this Agreement,
including the Cap Contracts, the Swap Agreements and any and all other
agreements related hereto, other than any loss, liability or expense (i) for
which the Trustee is indemnified by the Master Servicer or the related Servicer,
(ii) that constitutes a specific liability of the Trustee or the Securities
Administrator pursuant to this Agreement or (iii) any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of duties hereunder by the Trustee or the Securities Administrator
or by reason of reckless disregard of obligations and duties hereunder. In
no
event shall the Trustee or the Securities Administrator be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including
but
not limited to lost profits), even if it has been advised of the likelihood
of
such loss or damage and regardless of the form of action. The Master Servicer
agrees to indemnify the Trustee, from, and hold the Trustee harmless against,
any loss, liability or expense (including reasonable attorney’s fees and
expenses) incurred by the Trustee by reason of the Master Servicer’s willful
misfeasance, bad faith or gross negligence in the performance of its duties
under this Agreement or by reason of the Master Servicer’s reckless disregard of
its obligations and duties under this Agreement. The indemnities in this
Section 9.05 shall survive the termination or discharge of this Agreement
and the resignation or removal of the Master Servicer, the Trustee, the
Securities Administrator or the Custodian. Any payment hereunder made by the
Master Servicer to the Trustee shall be from the Master Servicer’s own funds,
without reimbursement from any REMIC therefor.
Section
9.06 Eligibility
Requirements for Trustee and Securities Administrator.
The
Trustee and the Securities Administrator shall at all times be a corporation
or
an association (other than the Depositor, the Sponsor or any Affiliate of the
foregoing) organized and doing business under 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 (or a
member of a bank holding company whose capital and surplus is 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 conditions so published. In case at any time the Trustee or
the
Securities Administrator, as applicable, shall cease to be eligible in
accordance with the provisions of this Section, the Trustee or the Securities
Administrator, as applicable, shall resign immediately in the manner and with
the effect specified in Section 9.07.
Additionally,
the Securities Administrator (i) may not be an originator, Master Servicer,
Servicer, Depositor or an affiliate of the Depositor unless the Securities
Administrator is in an institutional trust department, (ii) must be authorized
to exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least "A-1" by S&P (or such rating
acceptable to Fitch pursuant to a rating confirmation). Xxxxx Fargo Bank, N.A.
shall act as Securities Administrator for so long as it is Master Servicer
under
this Agreement.
Section
9.07 Resignation
and Removal of Trustee and Securities Administrator.
The
Trustee and the Securities Administrator may at any time resign (including,
without limitation, and in the case of the Securities Administrator, upon the
resignation or removal of the Master Servicer) and be discharged from the trust
hereby created by giving written notice thereof to the Depositor, to the Master
Servicer, to the Securities Administrator (or the Trustee, if the Securities
Administrator resigns) and to the Certificateholders. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor trustee or
successor Securities Administrator by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee or Securities
Administrator, as applicable, and to the successor trustee or successor
Securities Administrator, as applicable. A copy of such instrument shall be
delivered to the Certificateholders, the Trustee, the Securities Administrator
and the Master Servicer by the Depositor. If no successor trustee or successor
Securities Administrator shall have been so appointed and have accepted
appointment within thirty (30) days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator, as the case
may
be, may, at the expense of the Trust Fund, petition any court of competent
jurisdiction for the appointment of a successor trustee or successor Securities
Administrator, as applicable.
If
at any
time the Trustee or the Securities Administrator shall cease to be eligible
in
accordance with the provisions of Section 9.06 and shall fail to resign
after written request therefor by the Depositor, or if at any time the Trustee
or the Securities Administrator shall become incapable of acting, or shall
be
adjudged bankrupt or insolvent, or a receiver of the Trustee or the Securities
Administrator or of its property shall be appointed, or any public officer
shall
take charge or control of the Trustee or the Securities Administrator or of
its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee or the Securities
Administrator, as applicable and appoint a successor trustee or successor
Securities Administrator, as applicable, by written instrument, in duplicate,
which instrument shall be delivered to the Trustee or the Securities
Administrator so removed and to the successor trustee or successor Securities
Administrator. A copy of such instrument shall be delivered to the
Certificateholders, the Trustee, the Securities Administrator and the Master
Servicer by the Depositor.
The
Holders of Certificates entitled to at least fifty-one percent (51%) of the
Voting Rights may at any time remove the Trustee or the Securities Administrator
and appoint a successor trustee or successor Securities Administrator 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 or the Securities
Administrator so removed and one complete set to the successor so appointed.
A
copy of such instrument shall be delivered to the Certificateholders, the
Trustee (in the case of the removal of the Securities Administrator), the
Securities Administrator (in the case of the removal of the Trustee) and the
Master Servicer by the Depositor.
Any
resignation or removal of the Trustee or the Securities Administrator and
appointment of a successor trustee or successor Securities Administrator
pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee or successor
Securities Administrator, as applicable, as provided in
Section 9.08.
Notwithstanding
anything to the contrary contained herein, the Master Servicer and the
Securities Administrator shall at all times be the same Person.
Section
9.08 Successor
Trustee or Securities Administrator.
Any
successor trustee or successor Securities Administrator appointed as provided
in
Section 9.07 hereof shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee or predecessor Securities Administrator
instrument accepting such appointment hereunder and thereupon the resignation
or
removal of the predecessor trustee or predecessor Securities Administrator
shall
become effective and such successor trustee or successor Securities
Administrator, 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 or Securities
Administrator herein. The predecessor trustee or predecessor Securities
Administrator shall deliver to the successor trustee or successor Securities
Administrator all Mortgage Loan Documents and related documents and statements
to the extent held by it hereunder, as well as all monies, held by it hereunder,
and the Depositor and the predecessor trustee or predecessor Securities
Administrator 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 or successor Securities Administrator all
such rights, powers, duties and obligations.
No
successor trustee or successor Securities Administrator shall accept appointment
as provided in this Section 9.08 unless at the time of such acceptance such
successor trustee or successor Securities Administrator shall be eligible under
the provisions of Section 9.07 hereof and its appointment shall not
adversely affect the then current rating of the Certificates.
Upon
acceptance of appointment by a successor trustee or successor Securities
Administrator as provided in this Section 9.08, the successor trustee or
successor Securities Administrator shall mail notice of the succession of such
trustee or Securities Administrator hereunder to all Holders of Certificates.
If
the successor trustee or successor Securities Administrator fails to mail such
notice within ten days after acceptance of appointment, the Depositor shall
cause such notice to be mailed at the expense of the Trust Fund.
Section
9.09 Merger
or Consolidation of Trustee or Securities Administrator.
Any
corporation, state bank or national banking association into which the Trustee
or Securities Administrator may be merged or converted or with which it may
be
consolidated or any corporation, state bank or national banking association
resulting from any merger, conversion or consolidation to which the Trustee
or
the Securities Administrator shall be a party, or any corporation, state bank
or
national banking association succeeding to substantially all of the corporate
trust business of the Trustee or Securities Administrator or shall be the
successor of the Trustee or Securities Administrator hereunder, provided that
such corporation shall be eligible under the provisions of Section 9.06
without the execution or filing of any paper or further act on the part of
any
of the parties hereto, anything herein to the contrary
notwithstanding.
Section
9.10 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 IA, REMIC IIA
or any property securing the same may at the time be located, the Trustee shall
have the power and shall execute and deliver all instruments to appoint one
or
more Persons approved by the Trustee 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 IA or REMIC IIA, and to vest in such Person or Persons,
in such capacity, and for the benefit of the Holders of the Certificates, such
title to REMIC IA or REMIC IIA, or any part thereof, and, subject to the
other provisions of this Section 9.10, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms
of
eligibility as a successor trustee under Section 9.06 hereunder and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 9.08
hereof.
In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 9.10 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 Master 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 IA or REMIC IIA 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
IX.
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.
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 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 or co-trustee.
Section
9.11 Appointment
of Office or Agency.
The
Certificates may be surrendered for registration of transfer or exchange at
the
Securities Administrator’s office initially located at Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, and presented for final
distribution at the Corporate Trust Office of the Securities Administrator
where
notices and demands to or upon the Securities Administrator in respect of the
Certificates and this Agreement may be served.
Section
9.12 Representations
and Warranties.
The
Trustee hereby represents and warrants to the Master Servicer, the Securities
Administrator, GMACM and the Depositor as applicable, 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 of America.
(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 articles
of association or bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in
the
breach of, any material agreement or other instrument to which it is a party
or
which is applicable to it or any of its assets.
(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.
(v) It
is not
in violation of, and its execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in its good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of
it
to perform its obligations under this Agreement or its financial
condition.
No
litigation is pending or, to the best of its knowledge, threatened against
it,
which would prohibit it from entering into this Agreement or, in its good faith
reasonable judgment, is likely to materially and adversely affect either the
ability of it to perform its obligations under this Agreement or its financial
condition.
Section
9.13 Tax
Matters.
It
is
intended that the Trust Fund shall constitute, and that the affairs of the
Trust
Fund shall be conducted so that each REMIC formed hereunder qualifies as, a
“real estate mortgage investment conduit” as defined in and in accordance with
the REMIC Provisions. In furtherance of such intention, the Securities
Administrator covenants and agrees that it shall act as agent (and the
Securities Administrator is hereby appointed to act as agent) on behalf of
the
Trust Fund. The Securities Administrator, as agent on behalf of the Trust Fund,
shall do or refrain from doing, as applicable, the following: (a) the Securities
Administrator shall prepare and file, or cause to be prepared and filed, in
a
timely manner, U.S. Real Estate Mortgage Investment Conduit Income Tax Returns
(Form 1066 or any successor form adopted by the Internal Revenue Service) and
prepare and file or cause to be prepared and filed with the Internal Revenue
Service and applicable state or local tax authorities income tax or information
returns for each taxable year with respect to each such REMIC containing such
information and at the times and in the manner as may be required by the Code
or
state or local tax laws, regulations, or rules, and furnish or cause to be
furnished to Certificateholders the schedules, statements or information at
such
times and in such manner as may be required thereby; (b) the Securities
Administrator shall apply for an employer identification number with the
Internal Revenue Service via a Form SS-4 or other comparable method for each
REMIC that is or becomes a taxable entity, and within thirty days of the Closing
Date, furnish or cause to be furnished to the Internal Revenue Service, on
Forms
8811 or as otherwise may be required by the Code, the name, title, address,
and
telephone number of the person that the holders of the Certificates may contact
for tax information relating thereto, together with such additional information
as may be required by such Form, and update such information at the time or
times in the manner required by the Code for the Trust Fund; (c) the Securities
Administrator shall make or cause to be made elections, on behalf of each REMIC
formed hereunder to be treated as a REMIC on the federal tax return of such
REMIC for its first taxable year (and, if necessary, under applicable state
law); (d) the Securities Administrator shall prepare and forward, or cause
to be
prepared and forwarded, to the Certificateholders and to the Internal Revenue
Service and, if necessary, state tax authorities, all information returns and
reports as and when required to be provided to them in accordance with the
REMIC
Provisions, including without limitation, the calculation of any original issue
discount using the Prepayment Assumption; (e) the Securities Administrator
shall
provide information necessary for the computation of tax imposed on the transfer
of a Residual Certificate to a Person that is not a Permitted Transferee, or
an
agent (including a broker, nominee or other middleman) of a Person that is
not a
Permitted Transferee, or a pass-through entity in which a Person that is not
a
Permitted Transferee is the record Holder of an interest (the reasonable cost
of
computing and furnishing such information may be charged to the Person liable
for such tax); (f) the Securities Administrator shall, to the extent under
its
control, conduct the affairs of the Trust Fund at all times that any
Certificates are outstanding so as to maintain the status of each REMIC formed
hereunder as a REMIC under the REMIC Provisions; (g) the Securities
Administrator shall not knowingly or intentionally take any action or omit
to
take any action that would cause the termination of the REMIC status of any
REMIC formed hereunder; (h) the Securities Administrator shall pay, from the
sources specified in the last paragraph of this Section 9.12, the amount of
any federal, state and local taxes, including prohibited transaction taxes
as
described below, imposed on any REMIC formed hereunder prior to the termination
of the Trust Fund when and as the same shall be due and payable (but such
obligation shall not prevent the Securities Administrator or any other
appropriate Person from contesting any such tax in appropriate proceedings
and
shall not prevent the Securities Administrator from withholding payment of
such
tax, if permitted by law, pending the outcome of such proceedings); (i) the
Trustee shall sign or cause to be signed federal, state or local income tax
or
information returns or any other document prepared by the Securities
Administrator pursuant to this Section 9.13 requiring a signature thereon
by the Trustee; (j) the Securities Administrator shall maintain records relating
to each REMIC formed hereunder including but not limited to the income,
expenses, assets and liabilities of each such REMIC and adjusted basis of the
Trust Fund property determined at such intervals as may be required by the
Code,
as may be necessary to prepare the foregoing returns, schedules, statements
or
information; (k) the Securities Administrator shall, for federal income tax
purposes, maintain books and records with respect to the REMICs on a calendar
year and on an accrual basis; (l) the Securities Administrator shall not enter
into any arrangement not otherwise provided for in this Agreement by which
the
REMICs will receive a fee or other compensation for services nor permit the
REMICs 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; and (m) as and when necessary
and appropriate, the Securities Administrator shall represent the Trust Fund
in
any administrative or judicial proceedings relating to an examination or audit
by any governmental taxing authority, request an administrative adjustment
as to
any taxable year of any REMIC formed hereunder, enter into settlement agreements
with any governmental taxing agency, extend any statute of limitations relating
to any tax item of the Trust Fund, and otherwise act on behalf of each REMIC
formed hereunder in relation to any tax matter involving any such
REMIC.
In
order
to enable the Securities Administrator to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Securities
Administrator within ten (10) days after the Closing Date all information or
data that the Securities Administrator requests in writing and determines to
be
relevant for tax purposes to the valuations and offering prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flows of the Certificates and the Mortgage Loans.
Thereafter, the Depositor shall provide to the Securities Administrator promptly
upon written request therefor, any such additional information or data that
the
Securities Administrator may, from time to time, request in order to enable
the
Securities Administrator to perform its duties as set forth herein. The
Depositor hereby indemnifies the Securities Administrator for any losses,
liabilities, damages, claims or expenses of the Securities Administrator arising
from any errors or miscalculations of the Securities Administrator that result
from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Securities Administrator on a timely
basis.
In
the
event that any tax is imposed on “prohibited transactions” of any REMIC as
defined in Section 860F(a)(2) of the Code, on the “net income from
foreclosure property” of the Trust Fund as defined in Section 860G(c) of
the Code, on any contribution to any REMIC after the startup day pursuant to
Section 860G(d) of the Code, or any other tax is imposed, including,
without limitation, any federal, state or local tax or minimum tax imposed
upon
any of REMIC, and is not paid as otherwise provided for herein, such tax shall
be paid by (i) the Securities Administrator, if any such other tax arises out
of
or results from a breach by the Securities Administrator of any of its
obligations under this Section, (ii) any party hereto (other than the Securities
Administrator) to the extent any such other tax arises out of or results from
a
breach by such other party of any of its obligations under this Agreement or
(iii) in all other cases, or in the event that any liable party hereto fails
to
honor its obligations under the preceding clauses (i) or (ii), any such tax
(a)
with respect to REMIC IA will be paid first with amounts otherwise to be
distributed to the Class I-R Certificateholders, and second with amounts
otherwise to be distributed to all other Group I Certificateholders in the
following order of priority: first, to the Class I-X Certificates, second to
the
Class I-M-3 Certificates, third, to the Class I-M-2 Certificates, fourth, to
the
Class I-M-1 Certificates, and fifth, to the Group I Senior Certificates (pro
rata based on the amounts to be distributed); (b) with respect to REMIC IIA
will
be paid first with amounts otherwise to be distributed to the Class II-R
Certificateholders, and second with amounts otherwise to be distributed to
all
other Group II Certificateholders in the following order of priority: first,
to
the
Class II-X Certificates, second,
to the Class II-M-8 Certificates, third, to the Class II-M-7, fourth, to the
II-M-6 Certificates, fifth, to the Class II-M-5 Certificates, second, to the
Class II-M-4 Certificates, third, to the Class II-M-3 Certificates, fourth,
to
the Class II-M-2 Certificates, fifth, to the Class II-M-1 Certificates and
sixth, to the Group II Senior Certificates (pro rata based on the amounts to
be
distributed). Notwithstanding anything to the contrary contained herein, to
the
extent that such tax is payable by the Holder of any Certificates, the
Securities Administrator is hereby authorized to retain on any Distribution
Date, from the Holders of the related Residual Certificates (and, if necessary,
second, from the Holders of the other related Certificates in the priority
specified in the preceding sentence), funds otherwise distributable to such
Holders in an amount sufficient to pay such tax. The Securities Administrator
shall include in its monthly report to Certificateholders distributions to
such
parties taking into account the priorities described in the second preceding
sentence. The Securities Administrator agrees to promptly notify in writing
the
party liable for any such tax of the amount thereof and the due date for the
payment thereof. Notwithstanding the foregoing, however, in no event shall
the
Securities Administrator have any liability (1) for any action or omission
that
is taken in accordance with and in compliance with the express terms of, or
which is expressly permitted by the terms of this Agreement, (2) for any losses
other than arising out of a grossly negligent performance by the Securities
Administrator of its duties and obligations set forth herein, and (3) for any
special or consequential damages to Certificateholders (in addition to payment
of principal and interest on the Certificates).
ARTICLE
X
TERMINATION
Section
10.01 Termination
Upon Liquidation or Repurchase of all Mortgage Loans.
Subject
to Section 10.03, the obligations and responsibilities of the Depositor,
the Sponsor, the Securities Administrator, the Master Servicer and the Trustee
created hereby with respect to the Trust Fund shall terminate (other than the
obligations of the Master Servicer to the Trustee pursuant to Section 9.05
and of the Securities Administrator to make payments in respect of the
REMIC IA Regular Interests, the REMIC IB Regular Interests, the Class
I-X Interest, the Class I-P Interest, the Class I-IO Interest, the REMIC IIA
Regular Interests, the REMIC IIB Regular Interests, the Class II-X Interest,
the
Class II-P Interest, the Class II-IO Interest or the Group I Certificates or
the
Group II Certificates as hereinafter set forth) upon the earlier of (a) (i)
the
Master Servicer’s exercise of its optional right to purchase the Group I
Mortgage Loans and related REO Properties (the “Group I Clean-up Call”) and (ii)
the Master Servicer’s exercise of its optional right to purchase the Group II
Mortgage Loans and related REO Properties (the “Group II Cleanup Call”) and (b)
the later of (i)(x) the maturity or other liquidation (or any Advance with
respect thereto) of the last Group I Mortgage Loan remaining in the Trust Fund
and the disposition of all related REO Property and (Y) the maturity or other
liquidation (or any Advance with respect thereto) of the last Group II Mortgage
Loan remaining in the Trust Fund and the disposition of all related REO Property
and (ii)(x) the distribution to the Group I Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement and (Y) the
distribution to the Group II Certificateholders of all amounts required to
be
distributed to them pursuant to this Agreement, in each case as applicable.
In
no event shall the trusts created hereby continue beyond the earlier of (i)
the
expiration of twenty-one (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 and (ii) the Latest Possible
Maturity Date.
The
Group
I Cleanup Call and Group II Cleanup Call shall, in each case, be exercisable
at
a price (the “Termination Price”) equal to the sum of (i) 100% of the Stated
Principal Balance of the Group I Mortgage Loans or Group II Mortgage Loans,
as
applicable, (ii) accrued interest thereon at the applicable Mortgage Rate to,
but not including, the first day of the month of such purchase, (iii) the
appraised value of any related REO Property (up to the Stated Principal Balance
of the related Mortgage Loan), such appraisal to be conducted by an appraiser
selected in good faith by the Master Servicer, (iv) unreimbursed out-of-pocket
costs of the Securities Administrator, the Master Servicer, the Servicers or
the
Trustee, including unreimbursed servicing advances and the principal portion
of
any unreimbursed Advances, made on the related Mortgage Loans prior to the
exercise of such repurchase right; (v) any Swap Termination Payment payable
to
the related Swap Provider which remains unpaid or which is due to the related
Cleanup Call and (vi) any other amounts due and owing to the Trustee, the
Securities Administrator, the Master Servicer and the Custodian payable pursuant
to this Agreement or the Custodial Agreement.
The
right
to exercise the Group I Cleanup Call and the Group II Cleanup Call pursuant
to
the preceding paragraph shall be exercisable if the Stated Principal Balance
of
all of the Group I Mortgage Loans or Group II Mortgage Loans, as applicable,
at
the time of any such repurchase, is less than or equal to ten percent (10%)
of
the aggregate Cut-off Date Principal Balance of the related Mortgage
Loans.
Notwithstanding
the foregoing, the Master Servicer shall not be entitled to exercise the Cleanup
Call with respect to the related Loan Group to the extent that the Depositor
creates a net interest margin transaction which includes the Class I-X
Certificates or Class I-P Certificates or Class II-X Certificates or Class
II-P
Certificates, as applicable, and the notes issued pursuant to such net interest
margin transaction are outstanding on the date on which the Master Servicer
intends to exercise the related Cleanup Call.
In
connection with any Cleanup Call, four Business Days prior to the final
Distribution Date specified in the notice required pursuant to
Section 10.02, the Securities Administrator shall, no later than 4:00 pm
New York City time on such day, request in writing (in accordance with the
applicable provision of the related Swap Agreement) and by phone from the
related Swap Provider the amount of the Estimated Swap Termination Payment.
The
related Swap Provider shall, no later than 2:00 pm on the following Business
Day, notify in writing (which may be done in electronic format) the Securities
Administrator of the amount of the Estimated Swap Termination Payment; the
Securities Administrator shall promptly on the same day notify the Master
Servicer of the amount of the Estimated Swap Termination Payment.
Two
Business Days prior to the final Distribution Date specified in the notice
required pursuant to Section 10.02, (i) the Master Servicer shall, no later
than 1:00 pm New York City time on such day, deposit funds in the Distribution
Account in an amount equal to the sum of the Termination Price (other than
the
Swap Termination Payment) and the Estimated Swap Termination Payment, and (ii)
if the Securities Administrator shall have determined that the aggregate Stated
Principal Balance of all of the Mortgage Loans in the related Loan Group as
of
the related Determination Date is not more than 10% of the aggregate Principal
Balance of the related Mortgage Loans as of the Cut-off Date and that all other
requirements of the optional termination have been met, including without
limitation, the deposit required pursuant to the immediately preceding clause
(i) as well as the requirements specified in Section 10.03, then the
Securities Administrator shall, on the same Business Day, provide written notice
to the Depositor, the Master Servicer, the Servicer, the Supplemental Interest
Trust Trustee, the Trustee and the related Swap Provider confirming (in
accordance with the applicable provisions of the Swap Agreement) (a) its receipt
of the Termination Price (other than the Swap Termination Payment) and the
Estimated Swap Termination Payment and (b) that all other requirements of the
optional termination have been met. Upon the Securities Administrator’s
providing the notice described in the preceding sentence, the optional
termination shall become irrevocable, the notice to Certificateholders of such
optional termination provided pursuant to Section 10.02 shall become
unrescindable, the related Swap Provider shall determine the Swap Termination
Payment in accordance with the related Swap Agreement, and the related Swap
Provider shall provide to the Securities Administrator written notice of the
amount of the Swap Termination Payment not later than one Business Day prior
to
the final Distribution Date specified in the notice required pursuant to
Section 10.02.
In
connection with any optional termination, only an amount equal to the
Termination Price less any Swap Termination Payment shall be made available
for
distribution to the Regular Certificates. Any Estimated Swap Termination Payment
deposited into the Distribution Account by the Master Servicer shall be
withdrawn by the Securities Administrator from the Distribution Account on
the
related final Distribution Date and distributed as follows: (i) to the
Supplemental Interest Trust for payment to the related Swap Provider in
accordance with Sections 5.04 and 5.05, an amount equal to the Swap Termination
Payment calculated pursuant to the related Swap Agreement, provided that in
no
event shall the amount distributed to the related Swap Provider in respect
of
the Swap Termination Payment exceed the Estimated Swap Termination Payment,
and
(ii) to the Master Servicer an amount equal to the excess, if any, of the
Estimated Swap Termination Payment over the Swap Termination Payment. The Swap
Termination Payment shall not be part of any REMIC and shall not be paid into
any account which is part of any REMIC.
Section
10.02 Final
Distribution on the Certificates.
If
on any
Determination Date, (i) the Securities Administrator determines based on the
reports delivered by the Master Servicer under this Agreement that there are
no
Outstanding Mortgage Loans in Loan Group I and Loan Group II, and no other
funds
or assets in the Trust Fund with respect to Loan Group I and Loan Group II
other
than the funds in the Distribution Account, the Securities Administrator shall
notify the Trustee and send a final distribution notice promptly to each related
Certificateholder or (ii) the Securities Administrator determines that a Class
of Certificates shall be retired after a final distribution on such Class,
the
Securities Administrator shall notify the Trustee and the Certificateholders
within five (5) Business Days after such Determination Date that the final
distribution in retirement of such Class of Certificates is scheduled to be
made
on the immediately following Distribution Date. Any final distribution made
pursuant to the immediately preceding sentence will be made only upon
presentation and surrender of the related Certificates at the office of the
Securities Administrator set forth herein. If the Master Servicer elects to
exercise the Group I Cleanup Call or Group II Cleanup Call pursuant to
Section 10.01, at least twenty (20) days prior to the date notice is to be
mailed to the related Certificateholders, the Master Servicer shall notify
the
Securities Administrator and the Trustee of the date the Master Servicer intends
to exercise such Cleanup Call. The Master Servicer shall remit the Termination
Price to the Securities Administrator on behalf of the related REMIC on the
Business Day prior to the Distribution Date for such Optional Termination by
the
Master Servicer.
Notice
of
the exercise of the Group I Cleanup Call or Group II Cleanup Call specifying
the
Distribution Date on which the related Certificateholders may surrender their
Certificates for payment of the final distribution and cancellation, shall
be
given promptly by the Securities Administrator by letter to the related
Certificateholders mailed no later than the fifteenth (15th) day of the month
of
such final distribution. Any such notice shall specify (a) the Distribution
Date
upon which final distribution on such Certificates will be made upon
presentation and surrender of such Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of
the
office or agency at which such presentation and surrender must be made and
(d)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of
such Certificates at the office therein specified. The Securities Administrator
will give such notice to each Rating Agency at the time such notice is given
to
the related Certificateholders.
In
the
event such notice is given, the Master Servicer shall deposit in the
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the Certificates
related to the Loan Group or Loan Groups for which the Cleanup Call is being
exercised. Upon certification to the Trustee by the Securities Administrator
of
the making of such final deposit, the Trustee shall promptly release or cause
to
be released to the Master Servicer the Mortgage Files for the remaining Mortgage
Loans in the related Loan Group or Loan Groups for which the Cleanup Call is
being exercised, and the Trustee shall execute all assignments, endorsements
and
other instruments delivered to it and necessary to effectuate such
transfer.
Upon
presentation and surrender of the related Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders of each such
Class the amounts allocable to such Certificates held in the related sub-account
of the Distribution Account in the order and priority set forth in
Section 5.04 hereof on the final Distribution Date and in proportion to
their respective Percentage Interests.
In
the
event that any affected Certificateholders shall not surrender Certificates
for
cancellation within six (6) months after the date specified in the above
mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining affected Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six (6) months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining affected Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets that remain a part of the Trust Fund. If
within two (2) years after the second notice all affected Certificates shall
not
have been surrendered for cancellation, the related Residual Certificateholders
shall be entitled to all unclaimed funds and other assets of the Trust Fund
related to the Loan Group or Loan Groups for which the Cleanup Call was
exercised that remain subject hereto and the Securities Administrator shall
release such funds upon written direction.
Section
10.03 Additional
Termination Requirements.
In
the
event of (i) the exercise by the Master Servicer of the Group I Cleanup Call
and
the Group II Cleanup Call pursuant to the terms of this Agreement, or (ii)
the
final payment on or other liquidation of the last Group I Mortgage Loan or
related REO Property in REMIC IA and the final payment on or other
liquidation of the last Group II Mortgage Loan or related REO Property in REMIC
IIA pursuant to Section 10.01, the following additional requirements,
unless the Trustee has been supplied with an Opinion of Counsel, at the expense
of the Master Servicer (in the case of the exercise of the Group I Cleanup
Call
or the Group II Cleanup Call) or the Depositor, to the effect that the failure
of the Trust Fund to comply with the requirements of this Section 10.03
will not (i) result in the imposition of taxes on “prohibited transactions” of a
REMIC, or (ii) cause any REMIC to fail to qualify as a REMIC at any time that
the related Certificates are outstanding:
| (1) |
The
Master Servicer (in the case of the exercise of the Group I Cleanup
Call
or the Group II Cleanup Call) or the Depositor (in all other cases)
shall
establish a ninety-day liquidation period and notify the Securities
Administrator thereof, and the Securities Administrator shall in
turn
specify the first day of such period in a statement attached to the
tax
return for each of REMIC IA and REMIC IB, REMIC IC, REMIC ID,
REMIC IE, REMIC IF, REMIC IIA, REMIC IIB, REMIC IIC, REMIC IID, REMIC
IIE
or REMIC IIF, as applicable, pursuant to Treasury Regulation
Section 1.860F-1. The Master Servicer or the Depositor, as
applicable, shall satisfy all the 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
Master
Servicer or the Depositor, as
applicable;
|
| (2) |
During
such ninety-day liquidation period, and at or prior to the time of
making
the final payment on the Certificates, the Master Servicer (in the
case of
the exercise of the Group I Cleanup Call or the Group II Cleanup
Call) or
the Depositor (in all other cases) shall sell all of the assets of
REMIC IA or REMIC IIA, as applicable, for cash;
and
|
| (3) |
At
the time of the making of the final payment on the Group I Certificates
or
Group II 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 the Trust Fund (other than cash
retained
to meet claims), and the Trust Fund shall terminate at that
time.
|
By
their
acceptance of the Certificates, the Holders thereof hereby authorize the Master
Servicer (in the case of the exercise of the Group I Cleanup Call or the Group
II Cleanup Call) or the Depositor (in all other cases) to specify the ninety-day
liquidation period for REMIC IA and REMIC IB, REMIC IC, REMIC ID,
REMIC IE, REMIC IF, REMIC IIA, REMIC IIB, REMIC IIC, REMIC IID, REMIC IIE and
REMIC IIF, as applicable, which authorization shall be binding upon all
successor Certificateholders.
The
Securities Administrator as agent for each REMIC hereby agrees to adopt and
sign
such a plan of complete liquidation upon the written request of the Master
Servicer or the Depositor, as applicable, and the receipt of the Opinion of
Counsel referred to in Section 10.03(1) and to take such other action in
connection therewith as may be reasonably requested by the Master Servicer
or
the Depositor, as applicable.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Amendment.
This
Agreement may be amended from time to time by parties hereto, without the
consent of any of the Certificateholders to cure any ambiguity, to correct
or
supplement any provisions herein, to change the manner in which the Distribution
Account maintained by the Securities Administrator or the Custodial Accounts
maintained by the Servicers is maintained or to make such other provisions
with
respect to matters or questions arising under this Agreement as shall not be
inconsistent with any other provisions herein if such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the
interests of any Certificateholder (or the Swap Provider unless the Swap
Provider shall have consented to the amendment, which consent shall not be
unreasonably withheld); provided that any such amendment shall be deemed not
to
adversely affect in any material respect the interests of the Certificateholders
and no such Opinion of Counsel shall be required if the Person requesting such
amendment obtains a letter from each Rating Agency stating that such amendment
would not result in the downgrading or withdrawal of the respective ratings
then
assigned to the Certificates; provided further that any such amendment shall
be
deemed not to adversely affect in any material respect the interests of the
Certificateholders and no such Opinion of Counsel nor any letter from the Rating
Agencies stating that such amendment would not result in the downgrading or
withdrawal of the respective ratings then assigned to the Certificates shall
be
required if such amendment is to effect a transfer of servicing pursuant to
Section 7.06(a) to a Successor Servicer satisfying the Minimum Servicing
Requirements.
Notwithstanding
the foregoing, without the consent of the Certificateholders or the Swap
Provider, the parties hereto may at any time and from time to time amend this
Agreement to modify, eliminate or add to any of its provisions to such extent
as
shall be necessary or appropriate to maintain the qualification of each REMIC
as
a REMIC under the Code or to avoid or minimize the risk of the imposition of
any
tax on any REMIC pursuant to the Code that would be a claim against any REMIC
at
any time prior to the final redemption of the Certificates, provided that the
Trustee has been provided an Opinion of Counsel, which opinion shall be an
expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that such action is
necessary or appropriate to maintain such qualification or to avoid or minimize
the risk of the imposition of such a tax.
This
Agreement may also be amended from time to time by the parties hereto and the
Holders of each Class of Certificates affected thereby evidencing over 50%
of
the Voting Rights of such Class or Classes 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 (or, if such amendment modifies the rights of the Swap Provider
hereunder, with the consent of the Swap Provider, which consent shall not be
unreasonably withheld); provided that no such amendment shall (i) reduce in
any
manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) cause any REMIC to cease to qualify as a REMIC or (iii) reduce
the aforesaid percentages of Certificates of each Class the Holders of which
are
required to consent to any such amendment without the consent of the Holders
of
all Certificates of such Class then outstanding.
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, which opinion shall be an expense of the party requesting such
amendment but in any case shall not be an expense of the Trustee, to the effect
that such amendment will not (other than an amendment pursuant to clause (ii)
of, and in accordance with, the preceding paragraph) cause the imposition of
any
tax on any REMIC or the Certificateholders or cause any REMIC to cease to
qualify as a REMIC at any time that any Certificates are outstanding. Further,
nothing in this Agreement shall require the Trustee to enter into an amendment
without receiving an Opinion of Counsel, satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and (ii)
that all requirements for amending this Agreement (including any consent of
the
applicable Certificateholders) have been complied with.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trustee shall furnish written notification of the
substance of such amendment to each Certificateholder and each Rating
Agency.
It
shall
not be necessary for the consent of Certificateholders under this
Section 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.
Notwithstanding
any of the other provisions of this Section 11.01, none of the parties to
this Agreement shall enter into any amendment to this Agreement that could
reasonably be expected to have a material adverse effect on the interests of
the
Swap Provider hereunder (excluding, for the avoidance of doubt, any amendment
to
this Agreement that is entered into solely for the purpose of appointing a
successor servicer, master servicer, securities administrator, trustee or other
service provider) without the prior written consent of the Swap Provider, which
consent shall not be unreasonably withheld, conditioned or delayed.
The
Trustee may, but shall not be obligated to enter into any amendment that affects
its rights, duties or 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 of the counties
or other comparable jurisdictions in which any or all of the Mortgaged
Properties are situated, and in any other appropriate public recording office
or
elsewhere. The Sponsor or the Depositor shall effect such recordation at the
Trust’s expense upon the request in writing of a Certificateholder, but only if
such direction is accompanied by an Opinion of Counsel (provided at the expense
of the Certificateholder requesting recordation) to the effect that such
recordation would materially and beneficially affect the interests of the
Certificateholders or is required by law.
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.
Section
11.03 Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF OTHER THAN
THE
PROVISIONS OF SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
Section
11.04 Intention
of Parties.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Notes,
Mortgages, assignments of Mortgages, title insurance policies and any
modifications, extensions and/or assumption agreements and private mortgage
insurance policies relating to the Mortgage Loans by the Sponsor to the
Depositor, and by the Depositor to the Trust Fund be, and be construed as,
an
absolute sale thereof to the Depositor or the Trust Fund, as applicable. It
is,
further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Sponsor to the Depositor, or by the Depositor to the
Trust
Fund. However, in the event that, notwithstanding the intent of the parties,
such assets are held to be the property of the Sponsor or the Depositor, as
applicable, or if for any other reason this Agreement is held or deemed to
create a security interest in such assets, then (i) this Agreement shall be
deemed to be a security agreement within the meaning of the Uniform Commercial
Code of the State of New York and (ii) each conveyance provided for in this
Agreement shall be deemed to be an assignment and a grant by the Sponsor or
the
Depositor, as applicable, for the benefit of the Certificateholders, of a
security interest in all of the assets that constitute the Trust Fund, whether
now owned or hereafter acquired.
The
Depositor for the benefit of the Certificateholders 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 assets
of the Trust Fund, 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 the Agreement.
Section
11.05 Notices.
The
Securities Administrator shall use its best efforts to promptly provide notice
to each Rating Agency 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 Default or Master Servicer Default that
has not
been cured;
|
| (3) |
The
resignation or termination of a Servicer, the Master Servicer or
the
Trustee and the appointment of any successor;
and
|
| (4) |
The
final payment to
Certificateholders.
|
In
addition, the Securities Administrator shall, upon request, promptly furnish
to
each Rating Agency copies of the following:
| (1) |
Each
annual statement of compliance described in Section 3.13 of this
Agreement; and
|
| (2) |
Each
Assessment of Compliance and Attestation Report described in
Section 3.14.
|
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered at or mailed by registered mail,
return receipt requested, postage prepaid, or by recognized overnight courier,
or by facsimile transmission to a number provided by the appropriate party
if
receipt of such transmission is confirmed to (i) in the case of the Depositor,
Nomura Home Equity Loan, Inc., 2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx,
Xxx Xxxx 00000 Attention: Nomura Home Equity Loan, Inc., Alternative Loan Trust,
Series 2007-1; (ii) in the case of the Sponsor, Nomura Credit & Capital,
Inc., 2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Nomura Home Equity Loan, Inc., Alternative Loan Trust, Series 2007-1 or such
other address as may be hereafter furnished to the other parties hereto by
the
Sponsor in writing; (iii) in the case of the GMACM, GMAC Mortgage, LLC, 000
Xxxxxxxxxx Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxx Xxxxxxx; (iv) in
the
case of the Trustee, at each Corporate Trust Office or such other address as
the
Trustee may hereafter furnish to the other parties hereto; (v) in the case
of
the Custodian, Xxxxx Fargo Bank, N.A., 00 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, (vi) in the case of the Securities Administrator, its
Corporate Trust Office; (vii) in the case of the Master Servicer, X.X. Xxx
00,
Xxxxxxxx, Xxxxxxxx 00000 (or for overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention Client Manager - NHEL 2007-1); (viii) in
the
case of Xxxxx Fargo Bank, N.A. the Servicer, 0 Xxxx Xxxxxx, Xxx Xxxxxx, XX
00000-0000, Attention: Xxxx X. Xxxxx, MAC
X2302-033, Fax: (000) 000-0000, with a copy to:
0 Xxxx
Xxxxxx, Xxx Xxxxxx, XX 00000-0000, Attention: General Counsel MAC
X2401-06T and
(ix)
in the case of the Rating Agencies, (a) Standard & Poor’s, 00 Xxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Surveillance Group and (b) Xxxxx’x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Home Equity Monitoring. Any notice delivered to the Sponsor or the Trustee
under
this Agreement shall be effective only upon receipt. Any notice required or
permitted to be mailed to a Certificateholder, unless otherwise provided herein,
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder 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, whether or not the Certificateholder receives such
notice.
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.
Section
11.07 Assignment.
Notwithstanding
anything to the contrary contained herein, except as provided pursuant to
Section 7.02, this Agreement may not be assigned by the Sponsor or the
Depositor.
Section
11.08 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
representative or heirs to claim an accounting or to take any action or commence
any proceeding in any court for a petition or winding up of the Trust Fund,
or
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 provided 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 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 party 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 or by availing itself of any
provisions 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, a written notice of a
Servicer Default and of the continuance thereof, as hereinbefore provided,
the
Holders of Certificates evidencing not less than twenty-five percent (25%)
of
the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its
own
name as Trustee, hereunder and shall have offered to the Trustee such indemnity
satisfactory to it as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee or for sixty
(60)
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 being
understood and intended, and being 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 whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of the 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 common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 11.08,
each and every Certificateholder or the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section
11.09 Certificates
Nonassessable and Fully Paid.
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
Section
11.10 Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.13, 3.14,
3.18 and 5.16 of this Agreement is to facilitate compliance by the Sponsor
and
the Depositor with the provisions of Regulation AB promulgated by the SEC under
the Exchange Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from
time to time and subject to clarification and interpretive advice as may be
issued by the staff of the SEC from time to time. Therefore, each of the parties
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB, (c)
the
parties shall comply with requests made by the Sponsor or the Depositor for
delivery of additional or different information as the Sponsor or the Depositor
may determine in good faith is necessary to comply with the provisions of
Regulation AB and (d) no amendment of this Agreement shall be required to effect
any such changes in the parties’ obligations as are necessary to accommodate
evolving interpretations of the provisions of Regulation AB.
Notwithstanding
the foregoing, the Servicer shall be under no obligation to provide any
information in addition to that required by Sections 3.13, 3.14, 3.18 and 5.16
of this Agreement as of the Closing Date that the Depositor deems required
under
Regulation AB if (i) the Servicer does not believe that such additional
information is required under Regulation AB and (ii) the Servicer is not
providing such additional information for its own securitizations, unless the
Depositor pays all reasonable costs incurred by the Servicer in connection
with
the preparation and delivery of such additional information and the Servicer
is
given reasonable time to establish the necessary systems and procedures to
produce such additional information.
Section
11.11 Early
Termination of the Cap Contracts.
Upon
a
Cap Contract early termination other than in connection with the Optional
Termination in respect of the Group I Mortgage Loans, the Depositor will use
reasonable efforts to appoint a successor cap provider to enter into new Cap
Contracts on terms substantially similar to the Cap Contracts, with a successor
cap provider meeting all applicable eligibility requirements. The Securities
Administrator will apply any Cap Contract termination payment received from
the
original Cap Provider in connection with such Cap Contract early termination
to
the upfront payment required to appoint the successor Cap Provider.
If
the
Depositor is unable to appoint a successor cap provider within 30 days of the
Cap Contract early termination, then the Securities Administrator shall deposit
any Cap Contract termination payment received from the original Cap Provider
into a separate, non-interest bearing reserve account and will, on each
subsequent Distribution Date, withdraw from the amount then remaining on deposit
in such reserve account an amount equal to the payment, if any, that would
have
been paid to the Securities Administrator by the original Cap Provider
calculated in accordance with the terms of the original Cap Contracts, and
distribute such amount in accordance with the last paragraph of
Section 5.04(a).
Section
11.12 Early
Termination of a Swap Agreement.
Upon
a
Swap Agreement early termination other than in connection with the Optional
Termination in respect of the related Mortgage Loans, the Depositor will use
reasonable efforts to appoint a successor swap provider, meeting all applicable
eligibility requirements, which shall enter into a new interest rate swap
agreement on terms substantially similar to the Interest Rate Swap Agreement
with the Supplemental Interest Trust Trustee. If the Securities Administrator
receives a Swap Termination Payment from the Swap Provider in connection with
such Swap Early Termination, the Securities Administrator will apply such Swap
Termination Payment to any upfront payment required to appoint the successor
swap provider. If the Securities Administrator is required to pay a Swap
Termination Payment to the Swap Provider in connection with such Swap Early
Termination, the Securities Administrator will apply any upfront payment
received from the successor swap provider to pay such Swap Termination Payment.
If
the
Supplemental Interest Trust Trustee is unable to appoint a successor swap
provider within 30 days of the Swap Early Termination, then the Securities
Administrator will deposit any Swap Termination Payment received from the
original Swap Provider into a separate, non-interest bearing reserve account
and
will, on each subsequent Distribution Date, withdraw from the amount then
remaining on deposit in such reserve account an amount equal to the related
Net
Swap Payment, if any, that would have been paid to the Securities Administrator
by the original Swap Provider calculated in accordance with the terms of the
original Interest Rate Swap Agreement, and distribute such amount in accordance
with Section 5.04(f) for Section 5.05(d), as applicable.
Section
11.13 Third
Party Beneficiary
Each
Swap
Provider shall be an express third-party beneficiary of this Agreement to
the
extent
of its express rights to receive any payments under this Agreement or any
other express
rights of
each
Swap Provider explicitly stated in this Agreement,
and
shall have the right to enforce such rights under this Agreement as if it were
a
party hereto.
IN
WITNESS WHEREOF, the Depositor, the Sponsor, GMACM, the Master Servicer, the
Securities Administrator and the Trustee have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day
and
year first above written.
|
NOMURA
HOME
EQUITY LOAN, INC.,
|
|
|
as
Depositor
|
|
|
By:
/s/
Xxxx X. Xxxxxx
|
|
|
Name:
Xxxx X. Xxxxxx
|
|
|
Title:
Managing Director
|
|
|
NOMURA
CREDIT & CAPITAL, INC.,
|
|
|
as
Sponsor
|
|
|
By:
/s/
Xxxxx Xxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxx
|
|
|
Title:
Director
|
|
|
XXXXX
FARGO
BANK, NATIONAL
ASSOCIATION,
|
|
|
as
Master Servicer and Securities Administrator
|
|
|
By:
/s/
Xxxxx X. Xxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxx
|
|
|
Title:
Vice President
|
|
|
HSBC
BANK
USA, NATIONAL
ASSOCIATION,
|
|
|
as
Trustee
|
|
|
By:
/s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Assistant Vice President
|
|
|
GMAC
MORTGAGE, LLC,
|
|
|
as
a Servicer
|
|
|
By:
/s/
Xxxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxx
|
|
|
Title:
Vice President
|
|
|
With
respect to Sections 3.33, 3.34, 3.35 and 3.36
|
|
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
|
|
|
By:
/s/
Xxxxx X. Xxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxx
|
|
|
Title:
Vice President
|
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
this
___ day of January 2007, before me, a notary public in and for said State,
appeared _____________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of Nomura Home Equity Loan, 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 such 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 NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
this
____ day of July 2006 before me, a notary public in and for said State,
appeared_______________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of Nomura Credit & Capital,
Inc., that executed the within instrument, and also known to me to be the person
who executed it on behalf of such 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
this
____ day of January 2007 before me, a notary public in and for said State,
appeared_______________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of GMAC Mortgage, LLC, that executed
the within instrument, and also known to me to be the person who executed it
on
behalf of such 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
this
____ day of January 2007, before me, a notary public in and for said State,
appeared _______________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of HSBC Bank USA, National
Association that executed the within instrument, and also known to me to be
the
person who executed it on behalf of such 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
this
____ day of January 2007, before me, a notary public in and for said State,
appeared _______________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of Xxxxx Fargo Bank, National
Association that executed the within instrument, and also known to me to be
the
person who executed it on behalf of such entity, and acknowledged to me that
such entity 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
this
____ day of January 2007, before me, a notary public in and for said State,
appeared _______________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of Xxxxx Fargo Bank, National
Association that executed the within instrument, and also known to me to be
the
person who executed it on behalf of such entity, and acknowledged to me that
such entity 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
I-A-[1][2][3][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
(THE “CODE”).
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE
CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL
BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR NAMED HEREIN.
PRIOR
TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST AND THE FINAL MATURITY
RESERVE TRUST, ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE
THE
REPRESENTATIONS SET FORTH IN SECTION 6.02(b) OF THE
AGREEMENT.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No. __
|
Initial
Pass-Through Rate: [Floating] [___%]
|
|
Class
I-A-[1][2][3][4] Senior
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: January 1, 2007
|
Aggregate
Initial Certificate Principal Balance of the Class I-A-[1][2][3][4]
Certificates as of the Cut-off Date:
$
|
|
Trustee:
HSBC Bank USA, National Association
|
|
|
First
Distribution Date: February 25, 2007
|
Initial
Certificate Principal Balance of this Certificate as of the Cut-off
Date:
$
|
|
Master
Servicer and Securities Administrator:
Xxxxx
Fargo Bank, N.A.
|
|
|
Assumed
Final Distribution Date:
February
25, 2037
|
CUSIP:
[__________________]
|
ASSET-BACKED
CERTIFICATE
SERIES
2007-1
evidencing
a fractional undivided interest in the distributions allocable to the Class
I-A-[1][2][3][4] Certificates with respect to a Trust Fund consisting primarily
of a pool of conventional one- to four-family fixed-rate and adjustable-rate
mortgage loans sold by NOMURA HOME EQUITY LOAN, INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does
not
represent an obligation of or interest in Nomura Home Equity Loan, Inc. (“NHEL”)
or the Trustee or any of their affiliates or any other person. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any
governmental entity or by NHEL or the Trustee or any of their affiliates
or any
other person. None of NHEL, the Trustee, the Securities Administrator or
any of
their affiliates will have any obligation with respect to any certificate
or
other obligation secured by or payable from payments on the Certificates.
This
Certificate is one of the Classes of Group I Certificates (as defined in
the
Agreement).
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the
same Class as this Certificate in a trust (the “Trust Fund”) generally
consisting of conventional first lien, fixed-rate and adjustable-rate mortgage
loans secured by one- to four-family residences, units in planned unit
developments, individual condominium units, cooperatives, condotels and
townhouses (collectively, the “Mortgage Loans”) sold by NHEL. The Mortgage Loans
were sold by Nomura Credit & Capital, Inc. (the “Sponsor”)
to
NHEL. The Trust Fund was created pursuant to the Pooling and Servicing Agreement
dated as of the Cut-off Date specified above (the “Agreement”), among NHEL, as
depositor (the “Depositor”), the Sponsor, GMAC Mortgage, LLC, as a servicer,
HSBC Bank USA, National Association, as trustee (the “Trustee”), and Xxxxx Fargo
Bank, N.A., as master servicer (the “Master Servicer”) and securities
administrator (the “Securities Administrator”), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to
them 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 its acceptance hereof assents and by which
such
Holder is bound.
Interest
on this Certificate will accrue during [FOR CLASS I-A-[1][2][3]][the calendar
month immediately preceding the calendar month in which such Distribution
Date
occurs] [FOR CLASS I-A-4 CERTIFICATES][the period from and including the
25th
day of the calendar month preceding the calendar month in which such
Distribution Date occurs (or with respect to the first Accrual Period, the
Closing Date) to and including the 24th day of the calendar month in which
such
Distribution Date occurs] on the Certificate Principal Balance hereof at
a per
annum Pass-Through Rate equal to [FOR CLASS I-A-[1][2][3]] CERTIFICATES][the
Initial Pass-Through Rate set forth on the face hereof for the First
Distribution Date and, for each Distribution Date thereafter, the lesser
of (i)
[______]% per annum and (ii) the Net WAC Rate Cap for such Distribution Date]
[FOR CLASS I-A-4 CERTIFICATES][the sum of One-Month LIBOR for such Distribution
Date plus (A) on or prior to the first possible Optional Termination Date
with
respect to the Group I Mortgage Loans, [___]% or (B) after the first possible
Optional Termination Date with respect to the Group I Mortgage Loans, [___]%].
The Securities Administrator will distribute on the 25th day of each month,
or,
if such 25th day is not a Business Day, the immediately following Business
Day
(each, a “Distribution Date”), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered
on
the applicable Record Date, an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount (of interest and
principal, if any) required to be distributed to the Holders of Certificates
of
the same Class as this Certificate. The Assumed Final Distribution Date is
the
Distribution Date in February 2037 which is not likely to be the date on
which
the Certificate Principal Balance of this Class of Certificates will be reduced
to zero.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the foregoing, the final distribution on this Certificate
will
be made after due notice by the Securities Administrator of the pendency
of such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice. The initial Certificate Principal Balance of this
Certificate is set forth above. The Certificate Principal Balance hereof
will be
reduced to the extent of distributions allocable to principal
hereon.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Trustee
is not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
Prior
to
the termination of the Supplemental Interest Trust and the Final Maturity
Reserve Trust, any transferee of this Certificate shall be deemed to make
the
representations set forth in Section 6.02(b) of the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator. This Certificate is limited in right of
payment
to certain collections and recoveries respecting the Group I Mortgage Loans
and
other assets included in the Trust Fund and the Supplemental Interest Trust
relating to the Group I Mortgage Loans, all as more specifically set forth
in
the Agreement.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. 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
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 with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
or
any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement with respect to the Group I Certificates
(other than the obligations to make payments to the holders of the Group
I
Certificates) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last
Group I Mortgage Loan remaining in the Trust Fund and disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Group I
Mortgage Loan and (B) the remittance of all funds due under the Agreement
with
respect to the Group I Mortgage Loans, or (ii) the optional repurchase by
the
Master Servicer of all the Group I Mortgage Loans and other assets of the
Trust
Fund relating to the Group I Mortgage Loans in accordance with the terms
of the
Agreement. Such optional repurchase may be made by the Master Servicer only
on
or after the Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans is less than the percentage of the aggregate
Stated Principal Balance specified in the Agreement of the Group I Mortgage
Loans at the Cut-off Date. The exercise of such right will effect the early
retirement of the Group I Certificates. Notwithstanding the foregoing, the
Master Servicer shall not be entitled to exercise the Cleanup Call to the
extent
that the Depositor creates a net interest margin transaction which includes
the
Class I-X Certificates or Class I-P Certificates and the notes issued pursuant
to such net interest margin transaction are outstanding on the date on which
the
Master Servicer intends to exercise the Cleanup Call. In no event, however,
will
the Trust Fund created by the Agreement continue beyond the earlier of (i)
the
expiration of 21 years after the death of certain persons identified in the
Agreement and (ii) the Assumed Final Distribution Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated: January
__, 2007
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class I-A-[1][2][3][4] Certificates referred to in the
within-mentioned Agreement.
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination 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
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2
FORM
OF CLASS II-[1-A][2-A-1A][2-A-1B][2-A-2][2-A-3][2-A-4A][2-A-4B]
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
(THE “CODE”).
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN
BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL
BALANCE BY INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED
HEREIN.
PRIOR
TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF
THIS
CERTIFICATE SHALL BE DEEMED TO MAKE THE REPRESENTATIONS SET FORTH IN SECTION
6.02(b) OF THE AGREEMENT.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No. __
|
Pass-Through
Rate: Floating
|
|
Class
II-[1-A][2-A-1A][2-A-1B][2-A-2][2-A-3][2-A-4A][2-A-4B]
Senior
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: January 1, 2007
|
Aggregate
Initial Certificate Principal Balance of the Class II-[1-A][2-A-1A][2-A-1B][2-A-2][2-A-3][2-A-4A][2-A-4B]
Certificates
as of the Cut-off Date:
$
______________
|
|
Trustee:
HSBC Bank USA, National Association
|
|
|
First
Distribution Date: February 25, 2007
|
Initial
Certificate Principal Balance of this Certificate as of the Cut-off
Date:
$
______________
|
|
Master
Servicer and Securities Administrator: Xxxxx Fargo Bank,
N.A.
|
|
|
Assumed
Final Distribution Date:
February
25, 2037
|
CUSIP:
[______________]
|
ASSET-BACKED
CERTIFICATE
SERIES
2007-1
evidencing
a fractional undivided interest in the distributions allocable to the Class
II-[1-A][2-A-1A][2-A-1B][2-A-2][2-A-3][2-A-4A][2-A-4B]
Certificates
with respect to a Trust Fund consisting primarily of a pool of conventional
one-
to four-family fixed-rate and adjustable-rate mortgage loans sold by NOMURA
HOME
EQUITY LOAN, INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does
not
represent an obligation of or interest in Nomura Home Equity Loan, Inc. (“NHEL”)
or the Trustee or any of their affiliates or any other person. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any
governmental entity or by NHEL or the Trustee or any of their affiliates
or any
other person. None of NHEL, the Trustee, the Securities Administrator or
any of
their affiliates will have any obligation with respect to any certificate
or
other obligation secured by or payable from payments on the Certificates.
This
Certificate is one of the Classes of Group II Certificates (as defined in
the
Agreement).
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the
same Class as this Certificate in a trust (the “Trust Fund”) generally
consisting of conventional first lien, fixed-rate and adjustable-rate mortgage
loans secured by one- to four- family residences, units in planned unit
developments, individual condominium units, cooperatives, condotels and
townhouses (collectively, the “Mortgage Loans”) sold by NHEL. The Mortgage Loans
were sold by Nomura Credit & Capital, Inc. (the “Sponsor”) to NHEL. The
Trust Fund was created pursuant to the Pooling and Servicing Agreement dated
as
of the Cut-off Date specified above (the “Agreement”), among NHEL, as depositor
(the “Depositor”), the Sponsor, GMAC Mortgage, LLC, as a servicer, HSBC Bank
USA, National Association, as trustee (the “Trustee”), and Xxxxx Fargo Bank,
N.A., as master servicer (the “Master Servicer”) and securities administrator
(the “Securities Administrator”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them 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 its acceptance hereof assents and by which
such
Holder is bound.
Interest
on this Certificate will accrue during the period commencing on the immediately
preceding Distribution Date (as hereinafter defined) (or with respect to
the
First Distribution Date, the Closing Date) and ending on the day immediately
preceding the related Distribution Date on the Certificate Principal Balance
hereof at a per annum Pass-Through Rate equal to the least of (i) the sum
of
One-Month LIBOR for that Distribution Date plus (A) on or prior to the first
possible Optional Termination Date with respect to the Group II Mortgage
Loans,
[___]% or (B) after the first possible Optional Termination Date with respect
to
the Group II Mortgage Loans, [__]%, (ii) the related Net Funds Cap, (iii)
the
Cap Rate and (iv) the related Maximum Interest Rate. The Securities
Administrator will distribute on the 25th day of each month, or, if such
25th
day is not a Business Day, the immediately following Business Day (each,
a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the Business Day immediately preceding such Distribution Date,
an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to
be
distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date
in
February 2007 which is not likely to be the date on which the Certificate
Principal Balance of this Class of Certificates will be reduced to
zero.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the foregoing, the final distribution on this Certificate
will
be made after due notice by the Securities Administrator of the pendency
of such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice. The initial Certificate Principal Balance of this
Certificate is set forth above. The Certificate Principal Balance hereof
will be
reduced to the extent of distributions allocable to principal hereon and
Realized Losses on the Group II Mortgage Loans.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Trustee
is not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate shall be deemed to make the representations set forth in Section
6.02(b) of the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator. This Certificate is limited in right of
payment
to certain collections and recoveries respecting the Group II Mortgage Loans
and
other assets included in the Trust Fund and the Supplemental Interest Trust
relating to the Group II Mortgage Loans, all as more specifically set forth
in
the Agreement.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. 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
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 with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
Depositor, the Master Servicer, the Trustee, the Securities Administrator
or any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement with respect to the Group II Certificates
(other than the obligations to make payments to the holders of the Group
II
Certificates) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last
Group II Mortgage Loan remaining in the Trust Fund and disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Group
II Mortgage Loan and (B) the remittance of all funds due under the Agreement
with respect to the Group II Mortgage Loans, or (ii) the optional repurchase
by
the Master Servicer of all the Group II Mortgage Loans and other assets of
the
Trust Fund related to the Group II Mortgage Loans in accordance with the
terms
of the Agreement. Such optional repurchase may be made by the Master Servicer
only if on such Distribution Date the aggregate Stated Principal Balance
of the
Group II Mortgage Loans is less than or equal to 10% of the aggregate Stated
Principal Balance of the Group II Mortgage Loans at the Cut-off Date. The
exercise of such right will effect the early retirement of the Group II
Certificates. Notwithstanding the foregoing, the Master Servicer shall not
be
entitled to exercise the Cleanup Call to the extent that the Depositor creates
a
net interest margin transaction which includes the Class II-X Certificates
or
Class II-P Certificates and the notes issued pursuant to such net interest
margin transaction are outstanding on the date on which the Master Servicer
intends to exercise the Cleanup Call. In no event, however, will the Trust
Fund
created by the Agreement continue beyond the earlier to occur of (i) expiration
of 21 years after the death of certain persons identified in the Agreement
and
(ii) the Assumed Final Distribution Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated: January
__, 2007
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class II-[1-A][2-A-1A][2-A-1B][2-A-2][2-A-3][2-A-4A][2-A-4B]
Certificates
referred to in the within-mentioned Agreement.
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination 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
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-3
FORM
OF CLASS I-M-[1][2][3] CERTIFICATE
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE GROUP I SENIOR
CERTIFICATES [[,/AND] THE CLASS I-M-1 CERTIFICATES][AND THE CLASS I-M-2
CERTIFICATES] AS DESCRIBED IN THE AGREEMENT (AS DEFINED
BELOW).
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
(THE “CODE”).
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN
BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL
BALANCE BY INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED
HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE REPRESENTATIONS
SET
FORTH IN SECTION 6.02(b) OF THE AGREEMENT.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No. __
|
Pass-Through
Rate: [Floating] [___%]
|
|
Class
I-M-[1][2][3]
Mezzanine
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: January 1, 2007
|
Aggregate
Initial Certificate Principal Balance of this Class I-M-[1][2][3]
Certificate as of the Cut-off Date:
$_______________
|
|
Trustee:
HSBC Bank USA, National Association
|
|
|
First
Distribution Date:
February
25, 2007
|
Initial
Certificate Principal Balance of this Certificate as of the Cut-off
Date:
$________________
|
|
Master
Servicer and Securities Administrator: Xxxxx Fargo Bank,
N.A.
|
|
|
Assumed
Final Distribution Date:
February
25, 2037
|
CUSIP:
[__________________]
|
ASSET-BACKED
CERTIFICATE
SERIES
2007-1
evidencing
a fractional undivided interest in the distributions allocable to the Class
I-M-[1][2][3] Certificates with respect to a Trust Fund consisting primarily
of
a pool of conventional one- to four-family fixed-rate and adjustable-rate
mortgage loans sold by NOMURA HOME EQUITY LOAN, INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does
not
represent an obligation of or interest in Nomura Home Equity Loan, Inc. (“NHEL”)
or the Trustee or any of their affiliates or any other person. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any
governmental entity or by NHEL or the Trustee or any of their affiliates
or any
other person. None of NHEL, the Trustee, the Securities Administrator or
any of
their affiliates will have any obligation with respect to any certificate
or
other obligation secured by or payable from payments on the Certificates.
This
Certificate is one of the Classes of Group I Certificates (as defined in
the
Agreement).
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the
same Class as this Certificate in a trust (the “Trust Fund”) generally
consisting of conventional first lien, fixed-rate and adjustable-rate mortgage
loans secured by one- to four-family residences, units in planned unit
developments, individual condominium units, cooperatives, condotels and
townhouses (collectively, the “Mortgage Loans”) sold by NHEL. The Mortgage Loans
were sold by Nomura Credit & Capital, Inc. (the “Sponsor”) to NHEL. The
Trust Fund was created pursuant to the Pooling and Servicing Agreement dated
as
of the Cut-off Date specified above (the “Agreement”), among NHEL, as depositor
(the “Depositor”), the Sponsor, GMAC Mortgage, LLC, as a servicer, HSBC Bank
USA, National Association, as trustee (the “Trustee”), and Xxxxx Fargo Bank,
N.A. as master servicer (the “Master Servicer”) and securities administrator
(the “Securities Administrator”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them 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 its acceptance hereof assents and by which
such
Holder is bound.
Interest
on this Certificate will accrue during [FOR CLASS I-M-[1][2] CERTIFICATES][the
calendar month prior to the calendar month in which a Distribution Date (as
hereinafter defined) occurs] [FOR CLASS I-M-3 CERTIFICATES][the period from
and
including the 25th day of the calendar month preceding the calendar month
in
which such Distribution Date occurs (or with respect to the first Accrual
Period, the Closing Date) to and including the 24th day of the calendar month
in
which such Distribution Date occurs] on the Certificate Principal Balance
hereof
at a per annum Pass-Through Rate equal to [FOR CLASS I-M-[1][2]
CERTIFICATES][the Initial Pass-Through Rate set forth on the face hereof
for the
First Distribution Date and, for each Distribution Date thereafter, the lesser
of (i)(a) with respect to each Distribution Date which occurs on or prior
to the
Optional Termination Date with respect to the Group I Mortgage Loans, [____]%
per annum and (b) with respect to each Distribution Date which occurs
thereafter, [____]% per annum and (ii) the Net WAC Rate Cap for such
Distribution Date] [FOR CLASS I-M-3 CERTIFICATES][the sum of One-Month LIBOR
for
such Distribution Date plus (A) on or prior to the first possible Optional
Termination Date with
respect to the Group I Mortgage Loans,
[___]%
or (B) after the first possible Optional Termination Date with respect to
the
Group I Mortgage Loans, [___]%]. The Securities Administrator will distribute
on
the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a “Distribution Date”), commencing on
the First Distribution Date specified above, to the Person in whose name
this
Certificate is registered at the close of business on the last Business Day
of
the calendar month immediately preceding the month in which the Distribution
Date occurs, an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount (of interest and principal, if any) required
to be distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date
in
February 2037 which is not likely to be the date on which the Certificate
Principal Balance of this Class of Certificates will be reduced to
zero.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the foregoing, the final distribution on this Certificate
will
be made after due notice by the Securities Administrator of the pendency
of such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice. The initial Certificate Principal Balance of this
Certificate is set forth above. The Certificate Principal Balance hereof
will be
reduced to the extent of distributions allocable to principal hereon and
any
Realized Losses allocable hereto.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Trustee
is not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator. This Certificate is limited in right of
payment
to certain collections and recoveries respecting the Group I Mortgage Loans
and
other assets included in the Trust Fund and the Supplemental Interest Trust
relating to the Group I Mortgage Loans, all as more specifically set forth
in
the Agreement.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. 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
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 with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
Any
transferee of this Certificate shall be deemed to make the representations
set
forth in Section 6.02(b) of the Agreement.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
or
any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement with respect to the Group I Certificates
(other than the obligations to make payments to the holders of the Group
I
Certificates) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last
Group I Mortgage Loan remaining in the Trust Fund and disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Group I
Mortgage Loan and (B) the remittance of all funds due under the Agreement
with
respect to the Group I Mortgage Loans, or (ii) the optional repurchase by
the
Master Servicer of all the Group I Mortgage Loans and other assets of the
Trust
Fund relating to the Group I Mortgage Loans in accordance with the terms
of the
Agreement. Such optional repurchase may be made by the Master Servicer only
on
or after the Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans is less than the percentage of the aggregate
Stated Principal Balance specified in the Agreement of the Group I Mortgage
Loans at the Cut-off Date. The exercise of such right will effect the early
retirement of the Group I Certificates. Notwithstanding the foregoing, the
Master Servicer shall not be entitled to exercise the Cleanup Call to the
extent
that the Depositor creates a net interest margin transaction which includes
the
Class I-X Certificates or Class I-P Certificates and the notes issued pursuant
to such net interest margin transaction are outstanding on the date on which
the
Master Servicer intends to exercise the Cleanup Call. In no event, however,
will
the Trust Fund created by the Agreement continue beyond the earlier of (i)
the
expiration of 21 years after the death of certain persons identified in the
Agreement and (ii) the Assumed Final Distribution Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated: January
__, 2007
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class I-M-[1][2][3] Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination 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
|
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
|
|||||||
|
Assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4
FORM
OF CLASS II-M-[1][2][3][4][5][6][7][8] CERTIFICATE
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE GROUP II SENIOR
CERTIFICATES [[AND ]THE CLASS II-M-1
CERTIFICATES] [[,/AND ]THE CLASS II-M-2
CERTIFICATES] [[,/AND ]THE CLASS II-M-3
CERTIFICATES] [[,/AND ]THE CLASS
II-M-4
CERTIFICATES] [[,/AND ] [THE CLASS II-M-5 CERTIFICATES] [[,/AND ] [THE CLASS
II-M-6 CERTIFICATES] [AND THE CLASS II-M-7 CERTIFICATES] AS DESCRIBED IN
THE
AGREEMENT (AS DEFINED BELOW).
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
(THE “CODE”).
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY PRINCIPAL
PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY, FOLLOWING
THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF
THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE
BY
INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE REPRESENTATIONS
SET
FORTH IN SECTION 6.02(b) OF THE AGREEMENT.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No. __
|
Pass-Through
Rate: Floating
|
|
Class
II-M-[1][2][3][4][5][6][7][8]
Mezzanine
|
|
|
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date:
January
1, 2006
|
Aggregate
Initial Certificate Principal Balance of the Class
II-M-[1][2][3][4][5][6][7][8] Certificates as of the Cut-off
Date:
$
|
|
Trustee:
HSBC Bank USA, National Association
|
|
|
First
Distribution Date:
February
25, 2007
|
Initial
Certificate Principal Balance of this Certificate as of the Cut-off
Date:
$
|
|
Master
Servicer and Securities Administrator: Xxxxx Fargo Bank,
N.A.
|
|
|
Assumed
Final Distribution Date:
February
25, 2037
|
CUSIP:
[__________________]
|
ASSET-BACKED
CERTIFICATE
SERIES
2007-1
evidencing
a fractional undivided interest in the distributions allocable to the Class
II-M-[1][2][3][4][5][6][7][8] Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family fixed-rate
and adjustable-rate mortgage loans sold by NOMURA HOME EQUITY LOAN,
INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does
not
represent an obligation of or interest in Nomura Home Equity Loan, Inc. (“NHEL”)
or the Trustee or any of their affiliates or any other person. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any
governmental entity or by NHEL or the Trustee or any of their affiliates
or any
other person. None of NHEL, the Trustee, the Securities Administrator or
any of
their affiliates will have any obligation with respect to any certificate
or
other obligation secured by or payable from payments on the Certificates.
This
Certificate is one of the Classes of Group II Certificates (as defined in
the
Agreement).
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced hereby in the beneficial ownership interest of Certificates of
the
same Class as this Certificate in a trust (the “Trust Fund”) generally
consisting of conventional first lien, fixed-rate and adjustable-rate mortgage
loans secured by one- to four- family residences, units in planned unit
developments, individual condominium units, cooperatives, condotels and
townhouses (collectively, the “Mortgage Loans”) sold by NHEL. The Mortgage Loans
were sold by Nomura Credit & Capital, Inc. (the “Sponsor”) to NHEL. The
Trust Fund was created pursuant to the Pooling and Servicing Agreement dated
as
of the Cut-off Date specified above (the “Agreement”), among NHEL, as depositor
(the “Depositor”), the Sponsor, GMAC Mortgage, LLC, as a servicer, HSBC Bank
USA, National Association, as trustee (the “Trustee”), and Xxxxx Fargo Bank,
N.A. as master servicer (the “Master Servicer”) and securities administrator
(the “Securities Administrator”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them 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 its acceptance hereof assents and by which
such
Holder is bound.
Interest
on this Certificate will accrue during the period commencing on the immediately
preceding Distribution Date (as hereinafter defined) (or with respect to
the
First Distribution Date, the Closing Date) and ending on the day immediately
preceding the related Distribution Date on the Certificate Principal Balance
hereof at a per annum Pass-Through Rate equal to the least of (i) the sum
of
One-Month LIBOR for that Distribution Date plus (A) on or prior to the first
possible Optional Termination Date with respect to the Group II Mortgage
Loans,
[___]% or (B) after the first possible Optional Termination Date with respect
to
the Group II Mortgage Loans, [__]%, (ii) the related Net Funds Cap, (iii)
the
Cap Rate and (iv) the related Maximum Interest Rate. The Securities
Administrator will distribute on the 25th day of each month, or, if such
25th
day is not a Business Day, the immediately following Business Day (each,
a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the Business Day immediately preceding such Distribution Date,
an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to
be
distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date
in
February 2037 which is not likely to be the date on which the Certificate
Principal Balance of this Class of Certificates will be reduced to
zero.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the foregoing, the final distribution on this Certificate
will
be made after due notice by the Securities Administrator of the pendency
of such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice. The initial Certificate Principal Balance of this
Certificate is set forth above. The Certificate Principal Balance hereof
will be
reduced to the extent of distributions allocable to principal hereon and
any
Realized Losses allocable hereto.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Trustee
is not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator. This Certificate is limited in right of
payment
to certain collections and recoveries respecting the Group II Mortgage Loans
and
other assets included in the Trust Fund and the Supplemental Interest Trust
relating to the Group II Certificates, all as more specifically set forth
in the
Agreement.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. 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
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 with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
Any
transferee of this Certificate shall be deemed to make the representations
set
forth in Section 6.02(b) of the Agreement.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
Depositor, the Master Servicer, the Trustee, the Securities Administrator
or any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement with respect to the Group II Certificates
(other than the obligations to make payments to the holders of the Group
II
Certificates) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last
Group II Mortgage Loan remaining in the Trust Fund and disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Group
II Mortgage Loan and (B) the remittance of all funds due under the Agreement
with respect to the Group II Mortgage Loans, or (ii) the optional repurchase
by
the Master Servicer of all the Group II Mortgage Loans and other assets of
the
Trust Fund related to the Group II Mortgage Loans in accordance with the
terms
of the Agreement. Such optional repurchase may be made by the Master Servicer
only if on such Distribution Date the aggregate Stated Principal Balance
of the
Group II Mortgage Loans is less than or equal to 10% of the aggregate Stated
Principal Balance of the Group II Mortgage Loans at the Cut-off Date. The
exercise of such right will effect the early retirement of the Group II
Certificates. Notwithstanding the foregoing, the Master Servicer shall not
be
entitled to exercise the Cleanup Call to the extent that the Depositor creates
a
net interest margin transaction which includes the Class II-X Certificates
or
Class II-P Certificates and the notes issued pursuant to such net interest
margin transaction are outstanding on the date on which the Master Servicer
intends to exercise the Cleanup Call. In no event, however, will the Trust
Fund
created by the Agreement continue beyond the earlier to occur of (i) expiration
of 21 years after the death of certain persons identified in the Agreement
and
(ii) the Assumed Final Distribution Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated:
January __, 2007
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
|
By:
_____________________________________________
|
|
|
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class II-M-[1][2][3][4][5][6][7][8] Certificates referred to in
the
within-mentioned Agreement.
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination 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
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-5
FORM
OF CLASS [I][II]-P 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
(THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE
WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF
A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN
SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT,
SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY
THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES
ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER
APPLICABLE JURISDICTION.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(b) OF THE
AGREEMENT.
|
Certificate
No. __
|
Percentage
Interest: 100%
|
|
Class
[I][II]-P
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date:
January
1, 2007
|
Aggregate
Initial Certificate Principal Balance of the Class [I][II]-P Certificates
as of the Cut-off Date: $100
|
|
Trustee:
HSBC Bank USA, National Association
|
Master
Servicer and Securities Administrator: Xxxxx Fargo Bank,
N.A.
|
|
First
Distribution Date:
February
25, 2007
|
|
|
Assumed
Final Distribution Date:
February
25, 2037
|
CUSIP:
[________________]
|
ASSET-BACKED
CERTIFICATE
SERIES
2007-1
evidencing
a fractional undivided interest in the distributions allocable to the Class
[I][II]-P Certificates with respect to a Trust Fund consisting primarily
of a
pool of conventional one- to four-family fixed-rate and adjustable-rate mortgage
loans sold by NOMURA HOME EQUITY LOAN, INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does
not
represent an obligation of or interest in Nomura Home Equity Loan, Inc. (“NHEL”)
or the Trustee referred to below or any of their affiliates or any other
person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed
or
insured by any governmental entity or by NHEL or the Trustee or any of their
affiliates or any other person. None of NHEL, the Trustee, the Securities
Administrator or any of their affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments
on
the Certificates. This Certificate is one of the Classes of [Group
I][Group II] Certificates
(as defined in the Agreement).
This
certifies that [ ] is the registered owner of the Percentage Interest evidenced
hereby in the beneficial ownership interest of Certificates of the same Class
as
this Certificate in a trust (the “Trust Fund”), generally consisting of
conventional first lien, fixed-rate and adjustable-rate mortgage loans secured
by one- to four- family residences, units in planned unit developments,
individual condominium units, cooperatives, condotels and townhouses
(collectively, the “Mortgage Loans”) sold by NHEL. The Mortgage Loans were sold
by Nomura Credit & Capital, Inc. (the “Sponsor”) to NHEL. The Trust Fund was
created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”), among NHEL, as depositor (the
“Depositor”), the Sponsor, GMAC Mortgage, LLC, as a servicer, HSBC Bank USA,
National Association, as trustee (the “Trustee”), and Xxxxx Fargo Bank, N.A. as
master servicer (the “Master Servicer”) and securities administrator (the
“Securities Administrator”), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein shall have the meaning ascribed to them 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 its acceptance hereof assents and by which such Holder is
bound.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the foregoing, the final distribution on this Certificate
will
be made after due notice by the Securities Administrator of the pendency
of such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice.
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
Securities Administrator 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 E and either F or G, as applicable,
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
Securities Administrator or the Trustee 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,
the Securities Administrator 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 Securities Administrator,
the
Depositor and the Sponsor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate shall be made to any person unless the transferee
provides a certification pursuant to Section 6.02(b) of the
Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Securities
Administrator is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided
in the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator. This Certificate is limited in right of
payment
to Prepayment Charges collected in respect of the [Group I][Group II] Mortgage
Loans and amounts on deposit in the Class [I][II]-P Certificate Account as
more
specifically set forth in the Agreement.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. 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
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 with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
Depositor, the Master Servicer, the Trustee, the Securities Administrator
or any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement with respect to the Group II Certificates
(other than the obligations to make payments to the holders of the Group
II
Certificates) shall terminate upon the earlier of (i) the later of (A) the
maturity or other liquidation (or Advance with respect thereto) of the last
[Group I][Group II] Mortgage Loan remaining in the Trust Fund and disposition
of
all property acquired upon foreclosure or deed in lieu of foreclosure of
any
[Group I][Group II] Mortgage Loan and (B) the remittance of all funds due
under
the Agreement with respect to the [Group I][Group II] Mortgage Loans, or
(ii)
the optional repurchase by the Master Servicer of all the [Group I][Group
II]
Mortgage Loans and other assets of the Trust Fund related to the [Group I][Group
II] Mortgage Loans in accordance with the terms of the Agreement. Such optional
repurchase may be made by the Master Servicer only if on such Distribution
Date
the aggregate Stated Principal Balance of the [Group I][Group II] Mortgage
Loans
is less than or equal to 10% of the aggregate Stated Principal Balance of
the
[Group I][Group II] Mortgage Loans at the Cut-off Date. The exercise of such
right will effect the early retirement of the [Group I][Group II] Certificates.
Notwithstanding the foregoing, the Master Servicer shall not be entitled
to
exercise the Cleanup Call to the extent that the Depositor creates a net
interest margin transaction which includes the Class [I][II]-X Certificates
or
Class [I][II]-P Certificates and the notes issued pursuant to such net interest
margin transaction are outstanding on the date on which the Master Servicer
intends to exercise the Cleanup Call. In no event, however, will the Trust
Fund
created by the Agreement continue beyond the earlier to occur of (i) expiration
of 21 years after the death of certain persons identified in the Agreement
and
(ii) the Assumed Final Distribution Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated:
January __, 2007
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
|
By:
____________________________________________
|
|
|
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [I][II]-P Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination 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
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-6
FORM
OF CLASS [I][II]-X 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
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE GROUP I SENIOR CERTIFICATES AND THE [GROUP
I][GROUP II] MEZZANINE CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE
WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF
A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN
SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT,
SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY
THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES
ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER
APPLICABLE JURISDICTION.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(b) OF THE
AGREEMENT.
|
Certificate
No. __
|
Percentage
Interest: ____
|
|
Class
[I][II]-X
|
Variable
Pass-Through Rate
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date: January 1,
2007
|
Initial
Certificate Notional Balance of this Certificate as of the Cut-off
Date:
|
|
Trustee:
HSBC Bank USA, National Association
|
|
|
First
Distribution Date: February 25, 2007
|
|
|
Master
Servicer and Securities Administrator: Xxxxx Fargo Bank,
NA.
|
|
|
Assumed
Final Distribution Date: February 25, 2037
|
CUSIP:
[__________________]
|
ASSET-BACKED
CERTIFICATE
SERIES
2007-1
evidencing
a fractional undivided interest in the distributions allocable to the Class
[I][II]-X Certificates with respect to a Trust Fund consisting primarily
of a
pool of conventional one- to four-family fixed-rate and adjustable-rate mortgage
loans sold by NOMURA HOME EQUITY LOAN, INC..
This
Certificate is payable solely from the assets of the Trust Fund, and does
not
represent an obligation of or interest in Nomura Home Equity Loan, Inc. (“NHEL”)
or the Trustee referred to below or any of their affiliates or any other
person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed
or
insured by any governmental entity or by NHEL or the Trustee or any of their
affiliates or any other person. None of NHEL, the Trustee, the Securities
Administrator or any of their affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments
on
the Certificates. This Certificate is one of the Classes of Group I Certificates
(as defined in the Agreement).
This
certifies that [
]
is
the
registered owner of the Percentage Interest evidenced hereby in the beneficial
ownership interest of Certificates of the same Class as this Certificate
in a
trust (the “Trust Fund”) generally consisting of conventional first lien,
fixed-rate and adjustable-rate mortgage loans secured by one- to four-family
residences, units in planned unit developments, individual condominium units,
cooperatives, condotels and townhouses (collectively, the “Mortgage Loans”) sold
by NHEL. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
“Sponsor”) to NHEL. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”), among NHEL, as depositor (the “Depositor”), the Sponsor, GMAC
Mortgage, LLC, as a servicer, HSBC Bank USA, National Association, as trustee
(the “Trustee”), and Xxxxx Fargo Bank, N.A., as master servicer (the “Master
Servicer”) and securities administrator (the “Securities Administrator”), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein shall have
the
meaning ascribed to them 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 its acceptance hereof
assents and by which such Holder is bound.
Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Certificate Notional
Balance hereof at a per annum rate equal to the Pass-Through Rate as set
forth
in the Agreement. The Securities Administrator will distribute on the 25th
day
of each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a “Distribution Date”), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last day Business Day immediately
preceding such Distribution Date, 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 Certificates of the same Class as this
Certificate. Assumed Final Distribution Date is the Distribution Date in
February 2037.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the foregoing, the final distribution on this Certificate
will
be made after due notice by the Securities Administrator of the pendency
of such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice.
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
Securities Administrator 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 E and either F or G, as applicable,
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
Securities Administrator or the Trustee 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,
the Securities Administrator 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 Securities Administrator,
the
Depositor and the Sponsor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate shall be made to any person unless the transferee
provides a certification pursuant to Section 6.02(b) of the
Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that neither the
Trustee
nor Securities Administrator is liable to the Certificateholders for any
amount
payable under this Certificate or the Agreement or, except as expressly provided
in the Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator. This Certificate is limited in right of
payment
to certain collections and recoveries respecting the [Group
I][Group II] Mortgage
Loans and other assets included in the Trust Fund and the Supplemental Interest
Trust relating to the [Group I][Group II] Mortgage Loans, all as more
specifically set forth in the Agreement.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. 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
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 with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
or
any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement with respect to the [Group I][Group
II] Certificates (other than the obligations to make payments to the
holders of the [Group I][Group II] Certificates) shall terminate upon the
earlier of (i) the later of (A) the maturity or other liquidation (or Advance
with respect thereto) of the last [Group I][Group II] Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any [Group I][Group
II] Mortgage Loan and (B) the remittance of all funds due under the
Agreement with respect to the [Group I][Group II] Mortgage Loans, or (ii)
the optional repurchase by the Master Servicer of all the [Group I][Group
II] Mortgage Loans and other assets of the Trust Fund related to the [Group
I][Group II] Mortgage Loans in accordance with the terms of the Agreement.
Such optional repurchase may be made by the Master Servicer only if on such
Distribution Date the aggregate Stated Principal Balance of the [Group I][Group
II] Mortgage Loans is less than or equal to 10% of the aggregate Stated
Principal Balance of the [Group I][Group II] Mortgage Loans at the Cut-off
Date. The exercise of such right will effect the early retirement of the
[Group
I][Group II] Certificates. Notwithstanding the foregoing, the Master
Servicer shall not be entitled to exercise the Cleanup Call to the extent
that
the Depositor creates a net interest margin transaction which includes the
Class
[I][II]-X Certificates or Class [I][II]-P Certificates and the notes issued
pursuant to such net interest margin transaction are outstanding on the date
on
which the Master Servicer intends to exercise the Cleanup Call. In no event,
however, will the Trust Fund created by the Agreement continue beyond the
earlier to occur of (i) expiration of 21 years after the death of certain
persons identified in the Agreement and (ii) the Assumed Final Distribution
Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated: January
__, 2007
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [I][II]-X Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination 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
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-7
FORM
OF CLASS [I][II]-[R][R-X] CERTIFICATE
THIS
CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL 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
(THE “CODE”).
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(b) OF THE
AGREEMENT.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SECURITIES
ADMINISTRATOR THAT (1) SUCH TRANSFEREE IS NOT (A) 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), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION,
OR
ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) 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 UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING
THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE
INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION
775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A),
(B),
(C), (D) OR (E) BEING HEREIN REFERRED TO AS A “DISQUALIFIED ORGANIZATION”), OR
(F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER
IS
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OR 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 OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
|
Certificate
No. __
|
|
|
Class
[I][II]-[R][R-X]
|
Percentage
Interest: ____
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: January 1, 2007
|
|
|
First
Distribution Date:
February
25, 2007
|
|
|
Trustee:
HSBC Bank USA, National Association
|
Master
Servicer and Securities Administrator: Xxxxx Fargo Bank,
N.A.
|
|
Assumed
Final Distribution Date:
February
25, 2007
|
|
|
CUSIP:
[__________________]
|
ASSET-BACKED
CERTIFICATE
SERIES
2007-1
evidencing
a fractional undivided interest in the distributions allocable to the Class
[I][II]-[R][R-X] Certificates with respect to a Trust Fund consisting primarily
of a pool of conventional one- to four-family fixed-rate and adjustable-rate
mortgage loans sold by NOMURA HOME EQUITY LOAN, INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does
not
represent an obligation of or interest in Nomura Home Equity Loan, Inc. (“NHEL”)
or the Trustee referred to below or any of their affiliates or any other
person.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed
or
insured by any governmental entity or by NHEL or the Trustee or any of their
affiliates or any other person. None of NHEL, the Trustee, the Securities
Administrator or any of their affiliates will have any obligation with respect
to any certificate or other obligation secured by or payable from payments
on
the Certificates. This Certificate is one of the Classes of [Group I][Group
II]
Certificates (as defined in the Agreement).
This
certifies that [ ] is the registered owner of the Percentage Interest evidenced
hereby in the beneficial ownership interest of Certificates of the same Class
as
this Certificate in a trust (the “Trust Fund”) generally consisting of
conventional first lien, fixed-rate and adjustable-rate mortgage loans secured
by one- to four-family residences, units in planned unit developments,
individual condominium units, cooperatives, condotels and townhouses
(collectively, the “Mortgage Loans”) sold by NHEL. The Mortgage Loans were sold
by Nomura Credit & Capital, Inc. (the “Sponsor”) to NHEL. The Trust Fund was
created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”), among NHEL, as depositor (the
“Depositor”), the Sponsor, GMAC Mortgage, LLC, as a servicer, HSBC Bank USA,
National Association, as trustee (the “Trustee”), and Xxxxx Fargo Bank, N.A., as
master servicer (the “Master Servicer”) and securities administrator (the
“Securities Administrator”), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein shall have the meaning ascribed to them 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 its acceptance hereof assents and by which such Holder is
bound.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions set forth in the Agreement to the effect that (i) each person
holding or acquiring any Ownership Interest in this Certificate must be a
United
States Person and a Permitted Transferee, (ii) the transfer of any Ownership
Interest in this Certificate will be conditioned upon the delivery to the
Securities Administrator of, among other things, an affidavit to the effect
that
it is a United States Person and Permitted Transferee, (iii) any attempted
or
purported transfer of any Ownership Interest in this Certificate in violation
of
such restrictions will be absolutely null and void and will vest no rights
in
the purported transferee, and (iv) if any person other than a United States
Person and a Permitted Transferee acquires any Ownership Interest in this
Certificate in violation of such restrictions, then the Depositor will have
the
right, in its sole discretion and without notice to the Holder of this
Certificate, to sell this Certificate to a purchaser selected by the Depositor,
which purchaser may be the Depositor, or any affiliate of the Depositor,
on such
terms and conditions as the Depositor may choose.
The
Securities Administrator will distribute on the 25th day of each month, or,
if
such 25th day is not a Business Day, the immediately following Business Day
(each, a “Distribution Date”), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered
at
the close of business on the last day (or if such last day is not a Business
Day, the Business Day immediately preceding such last day) of the calendar
month
immediately preceding the month in which the Distribution Date occurs, an
amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amounts required to be distributed to the Holders of Certificates
of the
same Class as this Certificate. The Assumed Final Distribution Date is the
Distribution Date in February 2037.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the foregoing, the final distribution on this Certificate
will
be made after due notice by the Securities Administrator of the pendency
of such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice.
No
transfer of this Certificate shall be made to any person unless the transferee
provides a certification pursuant to Section 6.02(b) of the
Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Securities
Administrator is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided
in the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator. This Certificate is limited in right of
payment to certain collections and recoveries respecting the [Group I][Group
II] Mortgage Loans and other assets included in the Trust Fund and the
Supplemental Interest Trust relating to the [Group I][Group II] Mortgage
Loans, all as more specifically set forth in the Agreement.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
or
any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement with respect to the [Group I][Group
II] Certificates (other than the obligations to make payments to the
holders of the [Group I][Group II] Certificates) shall terminate upon the
earlier of (i) the later of (A) the maturity or other liquidation (or Advance
with respect thereto) of the last [Group I][Group II] Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any [Group I][Group
II] Mortgage Loan and (B) the remittance of all funds due under the
Agreement with respect to the [Group I][Group II] Mortgage Loans, or (ii)
the optional repurchase by the Master Servicer of all the [Group I][Group
II] Mortgage Loans and other assets of the Trust Fund related to the [Group
I][Group II] Mortgage Loans in accordance with the terms of the Agreement.
Such optional repurchase may be made by the Master Servicer only if on such
Distribution Date the aggregate Stated Principal Balance of the [Group I][Group
II] Mortgage Loans is less than or equal to 10% of the aggregate Stated
Principal Balance of the [Group I][Group II] Mortgage Loans at the Cut-off
Date. The exercise of such right will effect the early retirement of the
[Group
I][Group II] Certificates. Notwithstanding the foregoing, the Master
Servicer shall not be entitled to exercise the Cleanup Call to the extent
that
the Depositor creates a net interest margin transaction which includes the
Class
[I][II]-X Certificates or Class [I][II]-P Certificates and the notes issued
pursuant to such net interest margin transaction are outstanding on the date
on
which the Master Servicer intends to exercise the Cleanup Call. In no event,
however, will the Trust Fund created by the Agreement continue beyond the
earlier to occur of (i) expiration of 21 years after the death of certain
persons identified in the Agreement and (ii) the Assumed Final Distribution
Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated: January
__, 2007
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
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||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [I][II]-[R][[R-X] Certificates referred to in the
within-mentioned Agreement.
|
XXXXX
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination 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
|
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
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|||||||
|
This
information is provided by
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|||||||
|
assignee
named above, or
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|||||||
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its
agent.
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EXHIBIT
B
MORTGAGE
LOAN SCHEDULE
The
Preliminary and Final Mortgage Loan Schedules shall set forth the following
information with respect to each Mortgage Loan:
|
(a)
|
the
Mortgage Loan identifying number;
|
|
(b)
|
the
Mortgage Rate in effect as of the Cut-off Date;
|
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(c)
|
the
Servicing Fee Rate;
|
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(d)
|
the
Net Mortgage Rate in effect as of the Cut-off Date;
|
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(e)
|
the
maturity date;
|
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(f)
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the
original principal balance;
|
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(g)
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the
Cut-off Date Principal Balance;
|
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(h)
|
the
original term;
|
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(i)
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the
remaining term;
|
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(j)
|
the
property type;
|
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(k)
|
the
product type (e.g., 2/28, 15 year fixed, 30 year fixed, 15/30 balloon,
etc.)
|
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(l)
|
with
respect to each MOM Loan, the related MIN;
|
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(m)
|
the
Custodian;
|
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(n)
|
a
code indicating whether the Mortgage Loan is subject to a Prepayment
Charge, the term of such Prepayment Charge and the amount of such
Prepayment Charge;
|
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(o)
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with
respect to each Group II Mortgage Loan, the first Adjustment
Date;
|
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(p)
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with
respect to each Group II Mortgage Loan, the Gross
Margin;
|
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(q)
|
with
respect to each Group II Mortgage Loan, the Maximum Mortgage Interest
Rate
under the terms of the Mortgage Note;
|
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(r)
|
with
respect to each Group II Mortgage Loan, the Minimum Mortgage Interest
Rate
under the terms of the Mortgage Note;
|
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(s)
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with
respect to each Group II Mortgage Loan, the Periodic Rate
Cap;
|
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(t)
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with
respect to each Group II Mortgage Loan, the first Adjustment Date
immediately following the Cut-off Date;
|
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(u)
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with
respect to each Group II Mortgage Loan, the related
Index;
|
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(v)
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the
related Loan Group; and
|
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(w)
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the
Servicer.
|
EXHIBIT
C
MORTGAGE
LOAN PURCHASE AGREEMENT
This
is a
Mortgage Loan Purchase Agreement (this “Agreement”), dated January 31, 2007,
between Nomura Credit & Capital, Inc., a Delaware corporation (the “Seller”)
and Nomura Home Equity Loan, Inc., a Delaware corporation (the
“Purchaser”).
Preliminary
Statement
The
Seller intends to sell the Mortgage Loans (as hereinafter identified) and
any
rights of the Seller in, to and under the Group I Interest Rate Swap Agreement,
the Group II Interest Rate Swap Agreement, the Class I-A-4 Cap Agreement
and the
Class I-M-3 Cap Agreement (exclusive
of any upfront premium paid by the provider of the Group I Interest Rate
Swap
Agreement, the Group II Interest Rate Swap Agreement, the Class I-A-4 Cap
Agreement and the Class I-M-3 Cap Agreement, if any, payable on the Closing
Date)
to the
Purchaser on the terms and subject to the conditions set forth in this
Agreement. The Purchaser intends to deposit the Mortgage Loans into a mortgage
pool comprising the Trust Fund. The Trust Fund will be evidenced by a single
series of asset-backed certificates designated as Nomura Home Equity Loan,
Inc.,
Home Equity Loan Trust, Series 2007-1, Asset-Backed Certificates (the
“Certificates”). The Certificates will consist of thirty (30) classes of
certificates. The Certificates will be issued pursuant to a pooling and
servicing agreement, dated as of January 1, 2007 (the “Pooling and Servicing
Agreement”), among the Purchaser as depositor, the Seller as sponsor, GMAC
Mortgage, LLC as a servicer (“GMACM”), Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”) as
master servicer and securities administrator and HSBC Bank USA, National
Association as trustee (the “Trustee”). The Purchaser will sell the Class I-A-1,
Class I-A-2, Class I-A-3, Class I-A-4, Class I-M-1, Class I-M-2, Class
I-M-3,
Class II-1-A, Class II-2-A-1A, Class II-2-A-1B, Class II-2-A-2, Class II-2-A-3,
Class II-2-A-4A, Class II-2-A-4B, Class II-M-1, Class II-M-2, Class II-M-3,
Class II-M-4, Class II-M-5, Class II-M-6, Class II-M-7 and Class II-M-8
Certificates to Greenwich Capital Markets, Inc. (“Greenwich”) and Bear, Xxxxxxx
& Co. Inc. (“Bear”, together with Greenwich, the “Underwriters”), pursuant
to the Underwriting Agreement, dated January 29, 2007, among the Purchaser
and
the Underwriters, and the Terms Agreement, dated January 29, 2007, among
the
Purchaser and the Underwriters. Capitalized terms used but not defined
herein
shall have the meanings set forth in the Pooling and Servicing Agreement.
Pursuant to the custodial agreement, dated as of January 1, 2007 (the “Custodial
Agreement”), among the Trustee, GMACM as a servicer, Xxxxx Fargo as a servicer
(with GMACM, each a “Servicer” and together, the “Servicers”) and Xxxxx Fargo as
custodian (the “Custodian”), the Trustee intends to have the Custodian take
possession of the Mortgages and Mortgage Notes, along with certain other
documents specified in the Custodial Agreement, as the custodian of the
Trustee,
in accordance with the terms and conditions thereof.
The
parties hereto agree as follows:
SECTION
1. Agreement
to Purchase.
The
Seller hereby sells, and the Purchaser hereby purchases, on January 31,
2007
(the “Closing Date”), (a) certain conventional, one-to-four family, fixed-rate
and adjustable-rate mortgage loans secured by first liens on residential
real
properties (the “Mortgage Loans”), having an aggregate principal balance as of
the close of business on January 1, 2007 (the “Cut-off Date”) of approximately
$1,023,112,198 (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 and
(b)
rights under the Group I Interest Rate Swap Agreement, the Group II Interest
Rate Swap Agreement, the Class I-A-4 Cap Agreement and the Class I-M-3
Cap
Agreement (exclusive of any upfront premium paid by the provider of the
Group I
Interest Rate Swap Agreement, the Group II Interest Rate Swap Agreement,
the
Class I-A-4 Cap Agreement and the Class I-M-3 Cap Agreement, if any, payable
on
the Closing Date).
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 describes such Mortgage Loans and
sets 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.
SECTION
3. Consideration.
(a) In
consideration for the Mortgage Loans and the Group I Interest Rate Swap
Agreement, the Group II Interest Rate Swap Agreement, the Class I-A-4 Cap
Agreement and the Class I-M-3 Cap Agreement (exclusive of any upfront premium
paid by the provider of the Group I Interest Rate Swap Agreement, the Group
II
Interest Rate Swap Agreement, the Class I-A-4 Cap Agreement and the Class
I-M-3
Cap Agreement, if any, payable on the Closing Date) to be purchased hereunder,
the Purchaser shall, as described in Section 10, (i) pay to or upon the
order of
the Seller in immediately available funds an amount (the “Purchase Price”) equal
to (i) $____________*
and (ii)
a 100% interest in the Class I-X, Class I-P, Class I-R, Class I-R-X, Class
II-X,
Class II-P, Class II-R and Class II-R-X Certificates, which shall be registered
[solely in the name of, or at the direction of, the Seller].
(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, the Group I Interest
Rate Swap Agreement, the Group II Interest Rate Swap Agreement, the Class
I-A-4
Cap Agreement and the Class I-M-3 Cap Agreement (exclusive of any upfront
premium paid by the provider of the Group I Interest Rate Swap Agreement,
the
Group II Interest Rate Swap Agreement, the Class I-A-4 Cap Agreement and
the
Class I-M-3 Cap Agreement, if any, payable on the Closing Date), together
with
its rights under this Agreement, to the Trustee for the benefit of the
Certificateholders.
*
Please
contact Nomura Credit & Capital, Inc. for pricing
information.
SECTION
4. Transfer
of the Mortgage Loans.
(a) Possession
of Mortgage Files.
The
Seller does hereby sell to the Purchaser, 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, and the Group
I
Interest Rate Swap Agreement, the Group II Interest Rate Swap Agreement,
the
Class I-A-4 Cap Agreement and the Class I-M-3 Cap Agreement (exclusive
of any
upfront premium paid by the provider of the Group I Interest Rate Swap
Agreement, the Group II Interest Rate Swap Agreement, the Class I-A-4 Cap
Agreement and the Class I-M-3 Cap Agreement, if any, payable on the Closing
Date). 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.
Pursuant
to various conveyance documents to be executed on the Closing Date and
pursuant
to the Pooling and Servicing Agreement, the Purchaser will assign on the
Closing
Date all of its right, title and interest in and to the Mortgage Loans
to the
Trustee for the benefit of the Certificateholders. In connection with the
transfer and assignment of the Mortgage Loans, the Seller has delivered
or will
deliver or cause to be delivered to the Trustee by the Closing Date or
such
later date as is agreed to by the Purchaser and the Seller (each of the
Closing
Date and such later date is referred to as a “Mortgage
File Delivery Date”),
the
documents set forth on Exhibit
1
hereto,
provided,
however,
that in
lieu of the foregoing, the Seller may deliver the following documents,
under the
circumstances set forth below: (x) in lieu of the original Mortgage, assignments
to the Trustee or intervening assignments thereof which have been delivered,
are
being delivered or will upon receipt of recording information relating
to the
Mortgage required to be included thereon, be delivered to recording offices
for
recording and have not been returned in time to permit their delivery as
specified above, the Seller may deliver a true copy thereof with a certification
by the Seller on the face of such copy, substantially as follows: “Certified to
be a true and correct copy of the original, which has been transmitted
for
recording”; (y) in lieu of the Mortgage, assignments to the Trustee or
intervening assignments thereof, if the applicable jurisdiction retains
the
originals of such documents or if the originals are lost (in each case,
as
evidenced by a certification from the Seller to such effect), the Seller
may
deliver photocopies of such documents containing an original certification
by
the judicial or other governmental authority of the jurisdiction where
such
documents were recorded; and (z) in lieu of the Mortgage Notes relating
to the
Mortgage Loans, each identified in the list delivered by the Purchaser
to the
Trustee on the Closing Date and attached hereto as Exhibit
2,
the
Seller may deliver lost note affidavits and indemnities of the Seller;
and
provided further, however, that in the case of Mortgage Loans which have
been
prepaid in full after the Cut-off Date and prior to the Closing Date, the
Seller, in lieu of delivering the above documents, may deliver to the Trustee
a
certification by the Seller to such effect. The Seller shall deliver such
original documents (including any original documents as to which certified
copies had previously been delivered) or such certified copies to the Trustee
promptly after they are received. The Seller shall cause the Mortgage and
intervening assignments, if any, and the assignment of the Mortgage to
be
recorded not later than 180 days after the Closing Date, or, in lieu of
such
assignments, shall provide an Opinion of Counsel pursuant to Section 6
hereof to
the effect that the recordation of such assignment is not necessary to
protect
the Trustee’s interest in the related Mortgage Loan. Upon the request of the
Purchaser, the Seller will assist the Purchaser in effecting the assignment
referred to above.
(c) In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Seller further agrees that it will cause, at the Seller’s own
expense, within thirty (30) days after the Closing Date, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller to the
Purchaser and by the Purchaser to the Trustee in accordance with this Agreement
for the benefit of the Certificateholders by including (or deleting, in
the case
of Mortgage Loans which are repurchased in accordance with this Agreement)
in
such computer files (a) the code in the field which identifies the specific
Trustee and (b) the code in the field “Pool Field” which identifies the series
of the Certificates issued in connection with such Mortgage Loans. The
Seller
further agrees that it will not, and will not permit the Servicers to,
alter the
codes referenced in this paragraph with respect to any Mortgage Loan during
the
term of the Pooling and Servicing Agreement unless and until such Mortgage
Loan
is repurchased in accordance with the terms of the Pooling and Servicing
Agreement.
(d) 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 (7) 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.
(e) Transfer
of Interest in Agreements.
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 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.
SECTION
5. Examination
of Mortgage Files.
(a) On
or
before the Mortgage File Delivery Date, the Seller will have made the Mortgage
Files available to the Purchaser or its agent for examination which may
be at
the offices of the Trustee or the Seller and/or the Seller’s custodian. The fact
that the Purchaser or its agent has conducted or has failed to conduct
any
partial or complete examination of the Mortgage Files shall not affect
the
Purchaser’s rights to demand cure, repurchase, substitution or other relief as
provided in this Agreement. In furtherance of the foregoing, the Seller
shall
make the Mortgage Files available to the Purchaser or its agent from time
to
time so as to permit the Purchaser to confirm the Seller’s compliance with the
delivery and recordation requirements of this Agreement and the Pooling
and
Servicing Agreement. In addition, upon request of the Purchaser, the Seller
agrees to provide to the Purchaser, the Underwriters and to any investors
or
prospective investors in the Certificates information regarding the Mortgage
Loans (which may be at the offices of the Seller and/or the Seller’s custodian)
and to make available personnel knowledgeable about the Mortgage Loans
for
discussions with the Purchaser, the Underwriters and such investors or
prospective investors, upon reasonable request during regular business
hours,
sufficient to permit the Purchaser, the Underwriters and such investors
or
potential investors to conduct such due diligence as any such party reasonably
believes is appropriate.
(b) Pursuant
to the Pooling and Servicing Agreement, on the Closing Date the Custodian
on
behalf of the Trustee, for the benefit of the Certificateholders, will
review
items of the Mortgage Files as set forth on Exhibit
1
and will
deliver to the Seller a certification in the form attached as Exhibit 1
to the
Custodial Agreement.
(c) Pursuant
to the Pooling and Servicing Agreement, the Trustee or the Custodian, on
behalf
of the Trustee, will review the Mortgage Files within 180 days of the Closing
Date and will deliver to the Seller a final certification substantially
in the
form of Exhibit 2 to the Custodial Agreement. If the Custodian is unable
to
deliver a final certification with respect to the items listed in Exhibit
2
due to
any document that is missing, has not been executed or is unrelated, determined
on the basis of the Mortgagor name, original principal balance and loan
number,
to the Mortgage Loans identified in the Final Mortgage Loan Schedule (a
“Material
Defect”),
pursuant to Section 6 of the Custodial Agreement, the Custodian will notify
the
Trustee of such Material Defect and the Trustee shall notify the Seller
of such
Material Defect. The Seller shall correct or cure any such Material Defect
within ninety (90) days from the date of notice from the Trustee of the
Material
Defect and if the Seller does not correct or cure such Material Defect
within
such period and such defect materially and adversely affects the interests
of
the Certificateholders in the related Mortgage Loan, the Seller will, in
accordance with the terms of the Pooling and Servicing Agreement, within
ninety
(90) days of the date of notice, provide the Trustee with a Replacement
Mortgage
Loan (if within two (2) years of the Closing Date) or purchase the related
Mortgage Loan at the applicable Purchase Price; provided,
however,
that if
such defect relates solely to the inability of the Seller to deliver the
original security instrument or intervening assignments thereof or a certified
copy because the originals of such documents or such certified copy have
not
been returned by the applicable jurisdiction, then the Seller shall not
be
required to repurchase such Mortgage Loan if the Seller delivers such original
documents or certified copy promptly upon receipt, but in no event later
than
360 days after the Closing Date. The foregoing repurchase obligation shall
not
apply in the event that the Seller cannot deliver such original or copy
of any
document submitted for recording to the appropriate recording office in
the
applicable jurisdiction because such document has not been returned by
such
office; provided that the Seller shall instead deliver a recording receipt
of
such recording office or, if such receipt is not available, a certificate
of the
Seller or a Servicing Officer confirming that such documents have been
accepted
for recording, and delivery to the Trustee shall be effected by the Seller
within thirty (30) days of its receipt of the original recorded
document.
(d) At
the
time of any substitution, the Seller shall deliver or cause to be delivered
the
Replacement Mortgage Loan, the related Mortgage File and any other documents
and
payments required to be delivered in connection with a substitution pursuant
to
the Pooling and Servicing Agreement. At the time of any purchase or
substitution, the Trustee shall (i) assign to the Seller and cause the
Custodian, on behalf of the Trustee, to release the documents (including,
but
not limited to, the Mortgage, Mortgage Note and other contents of the Mortgage
File) in the possession of the Custodian, on behalf of the Trustee, relating
to
the Deleted Mortgage Loan and (ii) execute and deliver such instruments
of
transfer or assignment, in each case without recourse, as shall be necessary
to
vest in the Seller title to such Deleted Mortgage Loan.
SECTION
6. Recordation
of Assignments of Mortgage.
(a) The
Seller will, promptly after the Closing Date, cause each Mortgage and each
assignment of Mortgage from the Seller to the Trustee, and all unrecorded
intervening assignments, if any, delivered on or prior to the Closing Date,
to
be recorded in all recording offices in the jurisdictions where the related
Mortgaged Properties are located; provided,
however,
the
Seller need not cause to be recorded any assignment for which (a) the related
Mortgaged Property is located in any jurisdiction under the laws of which,
as
evidenced by an Opinion of Counsel delivered by the Seller to the Trustee
and
the Rating Agencies, the recordation of such assignment is not necessary
to
protect the Trustee’s interest in the related Mortgage Loan or (b) MERS is
identified on the Mortgage or on a properly recorded assignment of the
Mortgage
as mortgagee of record solely as nominee for Seller and its successors
and
assigns; provided,
however,
notwithstanding the delivery of any Opinion of Counsel, each assignment
of
Mortgage shall be submitted for recording by the Seller in the manner described
above, at no expense to the Trust Fund or Trustee, upon the earliest to
occur of
(i) reasonable direction by the Holders of Certificates evidencing Percentage
Interests aggregating not less than twenty-five percent (25%) of the Trust,
(ii)
the occurrence of an Event of Default, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Seller, (iv) the occurrence of
a
servicing transfer as described in Section 8.02 of the Pooling and Servicing
Agreement or (v) with respect to any assignment of Mortgage, the occurrence
of a
bankruptcy, insolvency or foreclosure relating to the Mortgagor under the
related Mortgage.
(b) While
each such Mortgage or assignment is being recorded, if necessary, the Seller
shall leave or cause to be left with the Custodian, on behalf of the Trustee,
a
certified copy of such Mortgage or assignment. In the event that, within
180
days of the Closing Date, the Trustee has not been provided with an Opinion
of
Counsel as described above or received evidence of recording with respect
to
each Mortgage Loan delivered to the Purchaser pursuant to the terms hereof
or as
set forth above and the related Mortgage Loan is not a MOM Loan, the failure
to
provide evidence of recording or such Opinion of Counsel shall be considered
a
Material Defect, and the provisions of Section 5(c) and (d) shall apply.
All
customary recording fees and reasonable expenses relating to the recordation
of
the assignments of mortgage to the Trustee or the Opinion of Counsel, as
the
case may be, shall be borne by the Seller.
SECTION
7. 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:
(i) The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and is qualified and in good standing
to
do business in each jurisdiction where such qualification is necessary,
except
where the failure to so qualify would not reasonably be expected to have
a
material adverse effect on the Seller’s business as presently conducted or on
the Seller’s ability to enter into this Agreement and to consummate the
transactions contemplated hereby.
(ii) 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.
(iii) 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 organizational documents of the
Seller,
(B) any term or provision of any material agreement, contract, instrument
or
indenture, to which the 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.
(iv) 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 New York, 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.
(v) This
Agreement does not contain any untrue statement of 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 material fact or omit
to
state a material fact necessary to make the statements contained therein
not
misleading.
(vi) 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.
(vii) 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.
(viii) Immediately
prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated,
the Seller was the owner of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note, and, upon the payment to the Seller of the
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.
(ix) 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
it
from entering into this Agreement, (B) seeking to prevent the sale of the
Mortgage Loans by the Seller or the consummation of 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.
(x) 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 pursuant
to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any relevant jurisdiction, except any as may have
been
complied with.
(xi) The
Seller has not 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).
(xii) There
is
no litigation currently pending or, to the best of the Seller’s knowledge
without independent investigation, threatened against the Seller 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.
(xiii) The Seller
is a HUD approved mortgagee pursuant to Section 203 of the National Housing
Act.
SECTION
8. Representations
and Warranties of the Seller Relating to the Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that as to each
Mortgage
Loan as of the Closing Date:
(i) Information
provided to the Rating Agencies, including the loan level detail set forth
on
the Mortgage Loan Schedule, is true and correct according to the Rating
Agency
requirements;
(ii) No
fraud
has taken place on the part of the Mortgagor or any other party involved
in the
origination or servicing of the Mortgage Loan;
(iii) No
Monthly Payment required to be made under any Mortgage Loan is more than
thirty
(30) days delinquent;
(iv) Neither
the Seller nor the related originator of the Mortgage Loan has advanced
any
Monthly Payment required under the terms of the Mortgage Note;
(v) There
are
no delinquent taxes, assessment liens or insurance premiums affecting the
related Mortgaged Property;
(vi) The
terms
of the Mortgage Note and the Mortgage have not been materially 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. The substance of any such waiver, alteration
or
modification has been approved by the title insurer, to the extent required
by
the related policy. 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);
(vii) The
Mortgaged Property is insured against loss by fire and hazards of extended
coverage (excluding earthquake insurance) in an amount which is at least
equal
to the lesser of (i) the amount necessary to compensate for any damage
or loss
to the improvements which are a part of such property on a replacement
cost
basis or (ii) the outstanding principal balance of the Mortgage Loan. If
the
Mortgaged Property is 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. All such insurance policies
contain a standard mortgagee clause naming the originator of the Mortgage
Loan,
its successors and assigns as mortgagee and the Seller has not engaged
in any
act or omission which would impair the coverage of any such insurance policies.
Except as may be limited by applicable law, 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 Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(viii) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, fair housing, predatory, fair
lending or disclosure laws applicable to the origination and servicing
of the
Mortgage Loans have been complied with in all material respects, and the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws;
(ix) The
Mortgage has not been satisfied, cancelled, 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;
(x)
The
Mortgage was recorded or was submitted for recording in accordance with
all
applicable laws and is a valid, existing and enforceable perfected first
lien on
the Mortgaged Property including all improvements on the Mortgaged Property,
subject only to (a) the lien of the current real property taxes and (b)
covenants, conditions and restrictions, rights of way and
easements;
(xi) The
Mortgage Note and the related Mortgage are genuine and each is the legal,
valid
and binding obligation of the maker thereof, insured under the related
title
policy, and enforceable in accordance with its terms, except to the extent
that
the enforceability thereof may be limited by a bankruptcy, insolvency or
reorganization;
(xii) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage
Note
and the Mortgage and has the full right to convey, transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
lien,
pledge, charge, claim or security interest and immediately upon the sale,
assignment and endorsement of the Mortgage Loans from the Seller to the
Purchaser, the Purchaser shall have good and indefeasible title to and
be the
sole legal owner of the Mortgage Loans subject only to any encumbrance,
equity,
lien, pledge, charge, claim or security interest arising out of the Purchaser’s
actions;
(xiii) Each
Mortgage Loan is covered by a valid and binding American Land Title Association
lender's title insurance policy issued by a title insurer qualified to
do
business in the jurisdiction where the Mortgaged Property is located, which
title insurance policy is generally acceptable to Xxxxxx Xxx and Xxxxxxx
Mac. No
claims have been filed under such lender's title insurance policy, and
the
Seller has not done, by act or omission, anything that would impair the
coverage
of the lender's title insurance policy;
(xiv) There
is
no material default, breach, violation event 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 material default, breach, violation or event of acceleration,
and
the Seller has not, nor has its predecessors, waived any material default,
breach, violation or event of acceleration;
(xv) There
are
no mechanics' or similar liens or claims which have been filed for work,
labor
or material provided to the related Mortgaged Property prior to the origination
of the Mortgage Loan which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage, except as may be disclosed in the
related title policy;
(xvi) Except
with respect to approximately 8.70% of the Group I Mortgage Loans and
approximately 4.15% of the Group II Mortgage Loans, by aggregate principal
balance as of the Cut-off Date, which are balloon loans and approximately
41.94%
of the Group I Mortgage Loans and approximately 84.47% of the Group II
Mortgage
Loans by aggregate principal balance as of the Cut-off Date, which are
interest
only loans, each Mortgage Note is payable on the first day of each month
in
equal monthly installments of principal and interest (subject to adjustment
in
the case of the adjustable rate Mortgage Loans), with interest calculated
on a
30/360 basis and payable in arrears, sufficient to amortize the Mortgage
Loan
fully by the stated maturity date over an original term from commencement
of
amortization to not more than forty (40) years. No Mortgage Loan permits
negative amortization;
(xvii) The
servicing practices used in connection with the servicing of the Mortgage
Loans
have been in all respects reasonable and customary in the mortgage servicing
industry of like mortgage loan servicers, servicing mortgage loans similar
to
the Mortgage Loans in the same jurisdiction as the Mortgaged
Property;
(xviii) To
the
best of the Seller’s knowledge, there is no proceeding pending for the total or
partial condemnation of the Mortgaged Property;
(xix) 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;
(xx) The
Mortgage Note is not and has not been secured by any collateral except
the lien
of the related Mortgage referred to in subsection (x) above;
(xxi) 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 Seller to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor;
(xxii) The
Mortgage Loan is not subject to any valid right of rescission, set-off,
counterclaim or defense, including without limitation the defense of usury,
nor
will the operation of any of the terms of the Mortgage Note or the Mortgage,
or
the exercise of any right thereunder, render either the Mortgage Note or
the
Mortgage unenforceable, in whole or in part, or subject to any such right
of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto;
(xxiii) The
Mortgaged Property is free of material damage and in good repair, excepting
therefrom any Mortgage Loan subject to an escrow withhold as shown on the
Mortgage Loan Schedule;
(xxiv) All
of
the improvements which were included in determining the appraised value
of the
Mortgaged Property lie wholly within the Mortgaged Property's boundary
lines and
no improvements on adjoining properties encroach upon the Mortgaged Property,
excepting therefrom: (i) any encroachment insured against in the lender's
title
insurance policy identified in clause (xiii) above, (ii) any encroachment
generally acceptable to mortgage loan originators doing business in the
same
jurisdiction as the Mortgaged Property, and (iii) any encroachment which
does
not materially interfere with the benefits of the security intended to
be
provided by such Mortgage;
(xxv) All
parties to the Mortgage Note had the legal capacity to execute the Mortgage
Note
and the Mortgage, and the Mortgage Note and the Mortgage have been duly
executed
by such parties;
(xxvi) To
the
best of the Seller’s knowledge, at the time of origination of the Mortgage Loan,
no appraised improvement located on or being part of the Mortgaged Property
was
in violation of any applicable zoning law or regulation and all inspections,
licenses and certificates required in connection with the origination of
any
Mortgage Loan with respect to the occupancy of the Mortgaged Property,
have been
made or obtained from the appropriate authorities;
(xxvii) No
Mortgagor has notified the Seller of any relief requested or allowed under
the
Servicemembers Civil Relief Act;
(xxviii) All
parties which have held an interest in the Mortgage Loan are (or during
the
period in which they held and disposed of such interest, were) (1) in compliance
with any and all applicable licensing requirements of the state wherein
the
Mortgaged Property is located, (2) organized under the laws of such state,
(3)
qualified to do business in such state, (4) a federal savings and loan
association or national bank, (5) not doing business in such state, or
(6)
exempt from the applicable licensing requirements of such state;
(xxix) The
Mortgage File contains an appraisal of the related Mortgaged Property which
was
made prior to the approval of the Mortgage Loan by a qualified appraiser,
duly
appointed by the related originator and was made in accordance with the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and
the
Uniform Standards of Professional Appraisal Practice;
(xxx) Except
as
may otherwise be limited by applicable law, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid 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
thereunder;
(xxxi) The
Mortgage Loan does not contain any provision which would constitute a “buydown”
provision and pursuant to which Monthly Payments are paid or partially
paid with
funds deposited in a separate account established by the related originator,
the
Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other
than
the Mortgagor. The Mortgage Loan is not a “graduated payment mortgage loan” and
the Mortgage loan does not have a shared appreciation or other contingent
interest feature;
(xxxii) To
the
best of the Seller’s knowledge there is no action or proceeding directly
involving the Mortgaged Property presently pending in which compliance
with any
environmental law, rule or regulation is at issue and the Seller has received
no
notice of any condition at the Mortgaged Property which is reasonably likely
to
give rise to an action or proceeding in which compliance with any environmental
law, rule or regulation is at issue;
(xxxiii) Each
Mortgage Loan is an obligation which is principally secured by an interest
in
real property within the meaning of Treasury Regulation section 1.860G-2(a);
(xxxiv) Each
Mortgage Loan is directly secured by a first lien on, and consists of a
single
parcel of, real property with a detached one-to-four family residence erected
thereon, a townhouse or an individual condominium unit in a condominium
project,
or an individual unit in a planned unit development (“PUD”). No residence or
dwelling is a leasehold, mobile home or a manufactured dwelling unless
it is an
Acceptable Manufactured Dwelling. An “Acceptable Manufactured Dwelling” is a
manufactured dwelling, which is permanently affixed to a foundation and
treated
as “real estate” under applicable law. No Mortgaged Property is used for
commercial purposes. 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;
(xxxv) The
Mortgage Interest Rate payable by the Mortgagor with respect to the Adjustable
Rate Mortgage Loans is subject to adjustment at the time and in the amounts
as
are set forth in the related Mortgage Note;
(xxxvi)
[Reserved];
(xxxvii)
To the best of the Seller’s knowledge, the servicer for each Mortgage Loan has
accurately and fully reported its borrower credit files to each of the
credit
repositories in a timely manner;
(xxxviii)
No Mortgage Loan is subject to the Home Ownership and Equity Protection
Act of
1994 (“HOEPA”) or any comparable law and no Mortgage Loan is classified and/or
defined as a “high cost”, “covered”, (excluding home loans defined as “covered
home loans” in the New Jersey Home Ownership Security Act of 2002 that were
originated between November 26, 2003 and July 7, 2004), “high risk home” or
“predatory” loan under any other federal, state or local law or regulation or
ordinance (or a similarly classified loan using different terminology under
a
law imposing heightened regulatory scrutiny or additional legal liability
for
residential mortgage loans having high interest rates, points and/or
fees);
(xxxix) No
Mortgage Loan was selected from the mortgage loans in the Seller’s portfolio in
a manner so as to affect adversely the interests of the Purchaser;
(xl) Each
Mortgage File contains a full appraisal on form 1004 or 2055 with an interior
inspection (or the equivalent form for two-to four-family and investor
properties), or on a similar alternate form which includes substantially
similar
information to that required such forms, as applicable;
(xli) Each
Mortgage Loan is and will be a mortgage loan arising out of the originator’s
practice in accordance with the originator’s underwriting
guidelines;
(xlii)
As of
the Closing Date, the Seller has no knowledge of any fact that should lead
it to
expect that the Mortgage Loan will not be paid in full when due;
(xliii) No
Mortgage Loan is a “high cost loan” or a “covered loan”, as applicable (as such
terms are defined in the then current Standard & Poor’s LEVELS Version 5.7
Glossary Revised, Appendix E;
(xliv) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act;
(xlv) The
information set forth in the applicable part of the Mortgage Loan Schedule
relating to the existence of a Prepayment Charge is complete, true and
correct
in all material respects at the date or dates on which such information
is
furnished respecting with such information is furnished, and each Prepayment
Charge is permissible and enforceable in accordance with its terms upon
the
Mortgagor's full and voluntary principal prepayment under applicable federal,
state or local law, except to the extent that: (1) the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and
other
similar laws relating to creditors' rights; (2) the collectability thereof
may
be limited due to acceleration in connection with a foreclosure or other
involuntary prepayment; or (3) subsequent changes in applicable law may
limit or
prohibit enforceability thereof;
(xlvi) With
respect to each Group II-1 Mortgage Loan, no Mortgagor obtained a prepaid
single-premium credit-life, credit disability, credit unemployment or credit
property insurance policy in connection with the origination of such Group
II-1
Mortgage Loan;
(xlvii) With
respect to any Group II-1 Mortgage Loan originated on or after August 1,
2004,
neither the related Mortgage nor the related Mortgage Note requires the
Mortgagor to submit to arbitration to resolve any dispute arising out of
or
relating in any way to the Mortgage Loan transaction;
(xlviii) With
respect to the Group II-1 Mortgage Loans, the Mortgagor was not encouraged
or
required to select a mortgage loan product offered by such Mortgage Loan’s
originator which is a higher cost product designed for less creditworthy
borrowers, taking into account such facts as, without limitation, the Mortgage
Loan’s requirements and the Mortgagor’s credit history, income, assets and
liabilities and any such Mortgagor who sought financing through such
originator’s higher-priced lending channel was directed towards or offered the
such originator’s standard mortgage line if such Mortgagor qualified for one of
the standard products;
(xlix) With
respect to the Group II-1 Mortgage Loans, the methodology used in underwriting
the extension of credit for each Mortgage Loan did not rely solely on the
extent
of the Mortgagor’s equity in the collateral as the principal determining factor
in approving such extension of credit. The methodology employed objective
criteria such as the Mortgagor’s income, assets and liabilities, to the proposed
mortgage payment and, based on such methodology, the Group II-1 Mortgage
Loan’s
originator made a reasonable determination that at the time of origination
the
Mortgagor had the ability to make timely payments on such Group II-1 Mortgage
Loan;
(l) With
respect to Group II-1 Mortgage Loans, no Mortgagor was charged “points and fees”
in an amount greater than (a) $1,000 or (b) 5% of the principal amount
of such
Group II-1 Mortgage Loan, whichever is greater. For purposes of this
representation, “points and fees” (x) include origination, underwriting, broker
and finder’s fees and charges that the lender imposed as a condition of making
such Group II-1 Mortgage Loan, whether they are paid to the lender or a
third
party; and (y) exclude bona fide discount points, fees paid for actual
services
rendered in connection with the origination of the mortgage (such as attorneys’
fees, notaries fees and fees paid for property appraisals, credit reports,
surveys, title examinations and extracts, flood and tax certifications,
and home
inspections); the cost of mortgage insurance or credit-risk price adjustments;
the costs of title, hazard, and flood insurance policies; state and local
transfer taxes or fees; escrow deposits for the future payment of taxes
and
insurance premiums; and other miscellaneous fees and charges, which
miscellaneous fees and charges, in total, do not exceed 0.25 percent of
the loan
amount;
(li) With
respect to any Group II-1 Mortgage Loan that contains a provision permitting
imposition of a penalty upon a prepayment prior to maturity: (i) the Mortgage
Loan provides some benefit to the Mortgagor (e.g. a rate or fee reduction)
in
exchange for accepting such prepayment penalty, (ii) such Mortgage Loan’s
originator had a written policy of offering the Mortgagor, or requiring
third-party brokers to offer the Mortgagor the option of obtaining a mortgage
loan that did not require payment of such a prepayment penalty, (iii) the
prepayment penalty was adequately disclosed to the Mortgagor pursuant to
applicable state and federal law, (iv) no Group II-1 Mortgage Loan originated
on
or after October 1, 2002 will provide for a prepayment penalty for a term
in
excess of three years and any Group II-1 Mortgage Loan originated prior
to such
date will not provide for prepayment penalties for a term in excess of
five
years; in each case unless such Mortgage Loan was modified to reduce the
prepayment period to no more than three years from the date of the Mortgage
Note
and the Mortgagor was notified in writing of such reduction in prepayment
period, and (v) such prepayment penalty shall not be imposed in any instance
where the mortgage debt is accelerated or paid off in connection with the
workout of a delinquent Group II-1 Mortgage Loan due to the Mortgagor’s default
notwithstanding that the terms of such Group II-1 Mortgage Loan or state
or
federal law might permit the imposition of such penalty;
(lii) The
related Servicer for each Group II-1 Mortgage Loan has fully furnished,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (i.e., favorable and unfavorable) on
its
borrower credit files to Equifax, Experian, and Trans Union Credit Information
Company (three of the credit repositories), on a monthly basis;
(liii) With
respect to any Group II-1 Mortgage Loan, the related residential dwelling
is not
a manufactured housing unit;
(liv) With
respect to Group II-1 Mortgage Loans, no Mortgage Loan originated on or
after
January 1, 2005, which is a “high cost home loan” as defined under the Indiana
Home Loan Practices Act (I.C. 24-9);
(lv) No
Group
II-1 Mortgage Loan was originated more than one year prior to the Closing
Date;
and
(lvi) No
Group
II-1 Mortgage Loan has an “annual percentage rate” or “total points and fees”
payable by the borrower (as each such term is defined under HOEPA) that
equal or
exceed the applicable thresholds defined under HOEPA (Section 32 of Regulation
Z, 12 C.F.R. Section 226.32(a)(1)(i) and (ii)).
SECTION
9. Repurchase
Obligation for Defective Documentation and for Breach of Representation
and
Warranty.
(a) The
representations and warranties contained in Section 8 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 Seller
or 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 the Certificateholders. 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 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. Notwithstanding anything to the contrary
contained herein, any breach of a representation or warranty contained
in
clauses (viii), (xxxviii), (xliii), (xliv), (xlvi), (xlvii), (xlviii),
(xlix),
(l), (li), (lii), (liii), (liv), (lv) and/or (lvi), of Section 8 above,
shall be
automatically deemed to affect materially and adversely the interests of
the
Purchaser or the Purchaser’s assignee, transferee or designee.
Upon
discovery by the Seller, the Purchaser or any assignee, transferee or designee
of the Purchaser of any materially defective document in, or that any material
document was not transferred by the Seller (as listed on an exception report
attached to the initial certification prepared by the Custodian, on behalf
of
the Trustee), or of a breach of any of the representations and warranties
contained in Section 8 that materially and adversely affects the value
of any
Mortgage Loan or the interest therein of the Purchaser or the Purchaser’s
assignee, transferee or designee, the party discovering such breach shall
give
prompt written notice to the Seller. Within 90 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
within 90 days 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
90 days
of its discovery or receipt of notice of any such missing or materially
defective documentation or within 90 days of any such breach of a representation
and warranty, 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
Replacement 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
9(a) shall be accomplished by transfer to an account designated by the
Purchaser
of the amount of the Purchase Price in accordance with Section 2.03 of
the
Pooling and Servicing Agreement. Any repurchase required by this Section
shall
be made in a manner consistent with Section 2.03 of the Pooling and Servicing
Agreement.
(b) If
the
representation made by the Seller in Section 8(xlv) is breached, the Seller
shall not have the right or obligation to cure, substitute or repurchase
the
affected Mortgage Loan but shall remit to the Servicer servicing such Mortgage
Loan for deposit in the Collection Account, prior to the next succeeding
Servicer Remittance Date, the amount of the Prepayment Charge indicated
on the
applicable part of the Mortgage Loan Schedule to be due from the Mortgagor
in
the circumstances less any amount collected and remitted to such Servicer
for
deposit into the Collection Account.
(c) It
is
understood and agreed that the obligations of the Seller set forth in this
Section 9 to cure or repurchase a defective Mortgage Loan (and to make
payments
pursuant to Section 9(b)) 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 8.
SECTION
10. 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
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 11 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;
(c) 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
(d) 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.
SECTION
11. Closing
Documents.
Without
limiting the generality of Section 10 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, upon which the
Purchaser and the Underwriters may rely with respect to certain facts regarding
the sale of the Mortgage Loans by the Seller to the Purchaser;
(b) An
Opinion of Counsel of the Seller, dated the Closing Date and addressed
to the
Purchaser and the Underwriters;
(c) Such
opinions of counsel as the Rating Agencies 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;
and
(d) Such
further information, certificates, opinions and documents as the Purchaser
or
the Underwriters may reasonably request.
SECTION
12. 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, fees for title policy endorsements and
continuations, the fees and expenses of the Seller’s accountants and attorneys,
the costs and expenses incurred in connection with producing a Servicer’s loan
loss, foreclosure and delinquency experience, and the costs and expenses
incurred in connection with obtaining the documents referred to in Sections
11(b) and 11(c), 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 and its counsel, 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.
The Seller shall pay all costs and expenses related to recording the Assignments
of Mortgage. All other costs and expenses in connection with the transactions
contemplated hereunder shall be borne by the party incurring such
expense.
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 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 3 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 10 hereof shall have been satisfied and the Purchaser shall not
have
paid or caused to be paid the 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 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 Two
World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, fax: (000) 000-0000, Attention: Legal Department
(NHEL
2007-1), 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 Two
World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, fax: (000) 000-0000, Attention: Xxxxx Xxxxxx,
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.
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 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
(EXCLUDING 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 GOVERN.
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 Section 9-305 of 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
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.
[Signature
page to follow]
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.
|
NOMURA
CREDIT & CAPITAL, INC.
|
|
|
By:
|
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
Director
|
|
NOMURA
HOME EQUITY LOAN, INC.
|
|
|
By:
|
|
|
Name:
|
Xxxx
X. Xxxxxx
|
|
Title:
|
Managing
Director
|
EXHIBIT
1
CONTENTS
OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of
the
following items, which shall be available for inspection by the Purchaser
or its
designee, and which shall be delivered to the Purchaser or its designee
pursuant
to the terms of the Agreement.
(a) the
original Mortgage Note (including all riders thereto) bearing all intervening
endorsements necessary to show a complete chain of endorsements from the
original payee, endorsed in blank, via
original signature,
and, if
previously endorsed, signed in the name of the last endorsee by a duly
qualified
officer of the last endorsee. If
the
Mortgage Loan was acquired by the last endorsee in a merger, the endorsement
must be by “[name of last endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the last
endorsee while doing business under another name, the endorsement must
be by
“[name of last endorsee], formerly known as [previous name]”;
(b) the
original Assignment of Mortgage executed in blank;
(c) the
original of any guarantee executed in connection with the Mortgage Note,
if
any;
(d) the
original Mortgage (including all riders thereto) 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,
and in the case of each MOM Loan, the original Mortgage, noting the presence
of
the MIN of the Mortgage Loan and either language indicating that the Mortgage
Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination,
the original Mortgage and the assignment thereof to MERS®, with evidence of
recording indicated thereon; or, if the original Mortgage with evidence
of
recording thereon has not been returned by the public recording office
where
such Mortgage has been delivered for recordation or such Mortgage has been
lost
or such public recording office retains the original recorded Mortgage,
a
photocopy of such Mortgage, together with (i) in the case of a delay caused
by
the public recording office, an Officer’s Certificate of the title insurer
insuring the Mortgage, the escrow agent, the seller or the Servicer servicing
such Mortgage Loan stating that such Mortgage has been delivered to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage
will be
promptly delivered to the Custodian upon receipt thereof by the party delivering
the Officer’s Certificate or by such Servicer; or (ii) in the case of a Mortgage
where a public recording office retains the original recorded Mortgage
or in the
case where a Mortgage is lost after recordation in a public recording office,
a
copy of such Mortgage with the recording information thereon certified
by such
public recording office to be a true and complete copy of the original
recorded
Mortgage;
(e) the
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, if any;
(f) the
originals of any intervening assignments of mortgage with evidence of recording
thereon evidencing a complete chain of ownership from the originator of
the
Mortgage Loan to the last assignee, or if any such intervening assignment
of
mortgage has not been returned from the applicable public recording office
or
has been lost or if such public recording office retains the original recorded
intervening assignments of mortgage, a photocopy of such intervening assignment
of mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer’s Certificate of the title insurer insuring the
Mortgage, the escrow agent, the seller or the Servicer servicing such Mortgage
Loan stating that such intervening assignment of mortgage has been delivered
to
the appropriate public recording office for recordation and that such original
recorded intervening assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the appropriate public recording office
to
be a true and complete copy of the original recorded intervening assignment
of
mortgage will be promptly delivered to the Custodian upon receipt thereof
by the
party delivering the Officer’s Certificate or by such Servicer; or (ii) in the
case of an intervening assignment of mortgage where a public recording
office
retains the original recorded intervening assignment of mortgage or in
the case
where an intervening assignment of mortgage is lost after recordation in
a
public recording office, a copy of such intervening assignment of mortgage
with
recording information thereon certified by such public recording office
to be a
true and complete copy of the original recorded intervening assignment
of
mortgage;
(g) if
the
Mortgage Note, the Mortgage, any Assignment of Mortgage, or any other related
document has been signed by a Person on behalf of the Mortgagor, the original
power of attorney or other instrument that authorized and empowered such
Person
to sign;
(h) the
original lender’s title insurance policy in the form of an ALTA mortgage title
insurance policy
or,
if the
original lender’s title insurance policy has not been issued, the irrevocable
commitment to issue the same; and
(i) the
original of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any.
EXHIBIT
2
FORM
OF LOST NOTE AFFIDAVIT
Loan
#:
_______
Borrower:
_______
LOST
NOTE
AFFIDAVIT
I,
as
_____________________ of ____________________, a _______________ am authorized
to make this Affidavit on behalf of Nomura Credit & Capital, Inc. (the
“Seller”). In connection with the administration of the Mortgage Loans held by
______________________, a _______________ [corporation] as Seller on behalf
of
____________________ (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 _________________ pursuant to the terms
and
provisions of a Mortgage Loan Purchase Agreement dated as of January 31,
2007;
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; and
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 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 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. Nomura Credit & Capital, Inc., represents and warrants that is has
the authority to perform its obligations under this Affidavit of Lost
Note.
Executed
this _ day of _______, 200_.
|
By:
|
|
|
Name:
|
|
|
Title:
|
On
this
__ day of ______, 200_, before me appeared ______________________ to me
personally known, who being duly sworn did say that he is the
_______________________ of ____________________, a ______________________
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 entity.
Signature:
[Seal]
EXHIBIT
D
TRANSFER
AFFIDAVIT AND AGREEMENT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
___________________________
being duly sworn, deposes, represents and warrants as follows:
|
1.
|
I
am a _____________________ of _______________________________ (the
“Investor”) a corporation duly organized and existing under the laws of
_________________________, the record owner of Nomura Home Equity
Loan,
Inc., Home Equity Loan Trust, Series 2007-1 Asset-Backed Certificates,
Class [I][II]-[R][R-X] Certificates (the “Class [I][II]-[R][R-X]
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 [I][II]-[R][R-X] Certificates were
issued.
|
|
2.
|
The
Investor (i) is and will be a “Permitted Transferee” as of
____________________. ____ and (ii) is acquiring the Class
[I][II]-[R][R-X] Certificates for its own account or for the account
of
another Investor 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 real 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.
|
|
3.
|
The
Investor is aware (i) of the tax that would be imposed on transfers
of the
Class [I][II]-[R][R-X] Certificates to disqualified organizations
under
the Internal Revenue Code of 1986 that applies to all transfers
of the
Class [I][II]-[R][R-X] Certificates after July 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
[I][II]-[R][R-X] 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
Investor is aware of the tax imposed on a “pass-through entity” holding
the Class [I][II]-[R][R-X] 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.)
|
|
5.
|
The
Investor is aware that the Securities Administrator will not register
the
transfer of any Class [I][II]-[R][R-X] Certificate unless the transferee,
or the transferee’s agent, delivers to the Securities Administrator, among
other things, an affidavit in substantially the same form as this
affidavit. The Investor 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
Investor 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 [I][II]-[R][R-X]
Certificates will only be owned, directly or indirectly, by an
Investor
that is a Permitted Transferee.
|
|
7.
|
The
Investor’s taxpayer identification number is
________________.
|
|
8.
|
The
Investor has reviewed the restrictions set forth on the face of
the Class
[I][II]-[R][R-X] Certificates and the provisions of Section 6.02(c)
of the
Pooling and Servicing Agreement under which the Class [I][II]-[R][R-X]
Certificates were issued (in particular, clauses (iii)(A) and (iii)(B)
of
Section 6.02(d) which authorize the Securities Administrator to
deliver
payments to a person other than the Investor and negotiate a mandatory
sale by the Securities Administrator in the event that the Investor
holds
such Certificate in violation of Section 6.02(c)); and that the
Investor
expressly agrees to be bound by and to comply with such restrictions
and
provisions.
|
|
9.
|
The
Investor is not acquiring and will not transfer the Class [I][II]-[R][R-X]
Certificates in order to impede the assessment or collection of
any
tax.
|
|
10.
|
The
Investor anticipates that it will, so long as it holds the Class
[I][II]-[R][R-X] Certificates, have sufficient assets to pay any
taxes
owed by the holder of such Class [I][II]-[R][R-X] Certificates,
and hereby
represents to and for the benefit of the person from whom it acquired
the
Class [I][II]-[R][R-X] Certificates that the Investor intends to
pay taxes
associated with holding such Class [I][II]-[R][R-X] Certificates
as they
become due, fully understanding that it may incur tax liabilities
in
excess of any cash flows generated by the Class [I][II]-[R][R-X]
Certificates.
|
|
11.
|
The
Investor has no present knowledge that it may become insolvent
or subject
to a bankruptcy proceeding for so long as it holds the Class
[I][II]-[R][R-X] Certificates.
|
|
12.
|
The
Investor 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
Investor is not acquiring the Class [I][II]-[R][R-X] Certificates
with the
intent to transfer the Class [I][II]-[R][R-X] Certificates to any
person
or entity that will not have sufficient assets to pay any taxes
owed by
the holder of such Class [I][II]-[R][R-X] Certificates, or that
may become
insolvent or subject to a bankruptcy proceeding, for so long as
the Class
[I][II]-[R][R-X] Certificates remain
outstanding.
|
|
14.
|
The
Investor will, in connection with any transfer that it makes of
the Class
[I][II]-[R][R-X] Certificates, obtain from its transferee the
representations required by Section 6.02(c) of the Pooling and
Servicing
Agreement under which the Class Class [I][II]-[R][R-X] 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
Investor will, in connection with any transfer that it makes of
the Class
[I][II]-[R][R-X] Certificates, deliver to the Securities Administrator
an
affidavit, which represents and warrants that it is not transferring
the
Class [I][II]-[R][R-X] 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 of the Class [I][II]-[R][R-X] Certificates;
(ii) may
become insolvent or subject to a bankruptcy proceeding for so long
as the
Class [I][II]-[R][R-X] Certificates remains outstanding; and (iii)
is not
a “Permitted Transferee”.
|
|
16.
|
The
Investor 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
Investor of the Class [I][II]-[R][R-X] Certificate, hereby agrees
that in
the event that the Trust Fund created by the Pooling and Servicing
Agreement is terminated pursuant to Section 10.01 thereof, the
undersigned
shall assign and transfer to the Holders of the Class X and the
Class P
Certificates any amounts in excess of par received in connection
with such
termination. Accordingly, in the event of such termination, the
Securities
Administrator is hereby authorized to withhold any such amounts
in excess
of par and to pay such amounts directly to the Holders of the Class
[I][II]-X and the Class [I][II]-P Certificates. This agreement
shall bind
and be enforceable against any successor, transferee or assigned
of the
undersigned in the Class [I][II]-[R][R-X] Certificate. In connection
with
any transfer of the Class [R][R-X] Certificate, the Investor shall
obtain
an agreement substantially similar to this clause from any subsequent
owner.
|
IN
WITNESS WHEREOF, the Investor 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
_________________, ____.
|
[INVESTOR]
|
||||||||
|
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 Investor, 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
Investor.
Subscribed
and sworn before me this ______________ day of __________, ____.
|
Notary
Public
|
|
|
County
of _____________________________
|
|
|
State
of _______________________________
|
|
|
My
Commission expires:
|
FORM
OF
TRANSFEROR AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
_________________________,
being duly sworn, deposes, represents and warrants as follows:
1. I
am
a ____________________
of _________________________ (the “Investor”), a corporation duly organized and
existing under the laws of _____________, on behalf of whom I make this
affidavit.
2. The
Investor is not transferring the Class [I][II]-[R][R-X] Certificates (the
“Residual Certificates”) to impede the assessment or collection of any
tax.
3. The
Investor 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
Investor understands that the Purchaser has delivered to the Securities
Administrator a transfer affidavit and agreement in the form attached to
the
Pooling and Servicing Agreement as Exhibit D. The Investor does not know
or
believe that any representation contained therein is false.
5. At
the
time of transfer, the Investor 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 Investor
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 Investor
understands that the transfer of a Residual Certificate may not be respected
for
United States income tax purposes (and the Investor may continue to be liable
for United States income taxes associated therewith) unless the Investor
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 dated as of January 1, 2007, among Nomura
Home Equity Loan, Inc., Nomura Credit & Capital, Inc., GMAC Mortgage, LLC,
Xxxxx Fargo Bank, N.A. and HSBC Bank USA, National Association.
IN
WITNESS WHEREOF, the Investor 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
________________, ____.
|
[INVESTOR]
|
||||||||
|
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 Investor, 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
Investor.
Subscribed
and sworn before me this ______ day of _____________, ____.
|
Notary
Public
|
|
|
County
of _____________________________
|
|
|
State
of _______________________________
|
|
|
My
Commission expires:
|
Personally
appeared before me the above-named [Name of Officer], known or proved to
me to
be the same person who executed the foregoing instrument and to be the [Title
of
Officer] of the Investor, 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
Investor.
Subscribed
and sworn before me this ___ day of _________, 20___.
NOTARY
PUBLIC
COUNTY
OF
STATE
OF
My
commission expires the ___ day of ___________________, 20___.
EXHIBIT
E
FORM
OF TRANSFEROR CERTIFICATE
______________,
2006
Nomura
Home Equity Loan, Inc.
Two
World
Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
Nomura
Home Equity Loan, Inc.
Asset-Backed
Certificates, Series 2007-1, Class [X][P][R][R-X]
|
Ladies
and Gentlemen:
In
connection with the sale by ___________ (the “Sponsor”) to ________ (the
“Purchaser”) of $_________ Initial Certificate Principal Balance of Asset-Backed
Certificates, Series 2007-1, Class [X][P][R][R-X] (the “Certificates”), issued
pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”), dated as of January 1, 2007, among Nomura Home Equity Loan, Inc.,
as depositor (the “Depositor”), Nomura Credit & Capital, Inc., as sponsor,
GMAC Mortgage, LLC, as a servicer, Xxxxx Fargo Bank, N.A., as master servicer
(the “Master Servicer”) and securities administrator (the “Securities
Administrator”) and HSBC Bank USA, National Association, as trustee (the
“Trustee”). The Sponsor hereby certifies, represents and warrants to, a
covenants with, the Depositor, the Securities Administrator and the Trustee
that:
Neither
the Sponsor 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,
or
(e) has taken any other action, that (as to any of (a) through (e) above)
would
constitute a distribution of the Certificates under the Securities Act of
1933
(the “Act”), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Sponsor will not act
in any
manner set forth in the foregoing sentence with respect to any Certificate.
The
Sponsor has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing
Agreement.
|
Very
truly yours,
|
||||||||
|
___________________________________________
|
||||||||
|
(Sponsor)
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
EXHIBIT
F
FORM
OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
___________,
2006
Nomura
Home Equity Loan, Inc.
Two
World
Financial Center
New
York,
New York 10281
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
Nomura
Home Equity Loan, Inc., Home Equity Loan Trust, Asset-Backed Certificates,
Series 2007-1
|
Ladies
and Gentlemen:
_______________
(the “Purchaser”) intends to purchase from ____________ (the “Sponsor”)
$_________ Initial Certificate Principal Balance of Asset-Backed Certificates,
Series 2007-1, Class [X][P][R][R-X] (the “Certificates”), issued pursuant to the
Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated
as of January 1, 2007, among Nomura Home Equity Loan, Inc., as depositor
(the
“Depositor”), Nomura Credit & Capital, Inc., as sponsor, GMAC Mortgage, LLC,
as a servicer, Xxxxx Fargo Bank, N.A., as master servicer (the “Master
Servicer”) and securities administrator (the “Securities Administrator”) and
HSBC Bank USA, National Association, as trustee (the “Trustee”). All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Purchaser hereby certifies, represents
and
warrants to, and covenants with, the Depositor, the Securities Administrator
and
the Trustee that:
|
1.
|
The
Purchaser understands that (a) the Certificates have not been and
will not
be registered or qualified under the Securities Act of 1933, as
amended
(the “Act”) or any state securities law, (b) the Depositor is not required
to so register or qualify the Certificates, (c) the Certificates
may be
resold only if registered and qualified pursuant to the provisions
of the
Act or any state securities law, or if an exemption from such registration
and qualification is available, (d) the Pooling and Servicing Agreement
contains restrictions regarding the transfer of the Certificates
and (e)
the Certificates will bear a legend to the foregoing
effect.
|
|
2.
|
The
Purchaser is acquiring the Certificates for its own account for
investment
only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or
any
applicable state securities laws.
|
|
3.
|
The
Purchaser is (a) a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business
matters,
and, in particular, in such matters related to securities similar
to the
Certificates, such that it is capable of evaluating the merits
and risks
of investment in the Certificates, (b) able to bear the economic
risks of
such an investment and (c) an “accredited investor” within the meaning of
Rule 501 (a) promulgated pursuant to the Act.
|
|
4.
|
The
Purchaser has been furnished with, and has had an opportunity to
review
(a) a copy of the Pooling and Servicing Agreement and (b) such
other
information concerning the Certificates, the Mortgage Loans and
the
Depositor as has been requested by the Purchaser from the Depositor
or the
Sponsor and is relevant to the Purchaser’s decision to purchase the
Certificates. The Purchaser has had any questions arising from
such review
answered by the Depositor or the Sponsor to the satisfaction of
the
Purchaser.
|
|
5.
|
The
Purchaser has not and will not nor has it authorized or will it
authorize
any person to (a) offer, pledge, sell, dispose of or otherwise
transfer
any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicit any offer to
buy or to
accept a pledge, disposition of other transfer of any Certificate,
any
interest in any Certificate or any other similar security from
any person
in any manner, (c) otherwise approach or negotiate with respect
to any
Certificate, any interest in any Certificate or any other similar
security
with any person in any manner, (d) make any general solicitation
by means
of general advertising or in any other manner or (e) take any other
action, that (as to any of (a) through (e) above) would constitute
a
distribution of any Certificate under the Act, that would render
the
disposition of any Certificate a violation of Section 5 of the
Act or any
state securities law, or that would require registration or qualification
pursuant thereto. The Purchaser will not sell or otherwise transfer
any of
the Certificates, except in compliance with the provisions of the
Pooling
and Servicing Agreement.
|
|
Very
truly yours,
|
||||||||
|
___________________________________________
|
||||||||
|
(Purchaser)
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
EXHIBIT
G
FORM
OF RULE 144A INVESTMENT LETTER
[Date]
Nomura
Credit & Capital, Inc.
Two
World
Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx
Xxxx,
Xxx Xxxx 00000
Nomura
Home Equity Loan, Inc.
Two
World
Financial Center
New
York,
New York 10281
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
Nomura
Home Equity Loan, Inc., Home Equity Loan Trust, Asset-Backed Certificates,
Series 2007-1
(the
“Certificates”), including the Class [X][P][R][R-X] Certificates (the
“Private
Certificates”)
|
Dear
Ladies and Gentlemen:
In
connection with our purchase of Private Certificates, we confirm
that:
|
(i)
|
we
understand that the Private Certificates are not being registered
under
the Securities Act of 1933, as amended (the “Act”) or any applicable state
securities or “Blue Sky” laws, and are being sold to us in a transaction
that is exempt from the registration requirements of such
laws;
|
|
(ii)
|
any
information we desired concerning the Certificates, including the
Private
Certificates, the trust in which the Certificates represent the
entire
beneficial ownership interest (the “Trust”) or any other matter we deemed
relevant to our decision to purchase Private Certificates has been
made
available to us;
|
|
(iii)
|
we
are able to bear the economic risk of investment in Private Certificates;
we are an institutional “accredited investor” as defined in Section 501(a)
of Regulation D promulgated under the Act and a sophisticated
institutional investor and we agree to obtain a representation
from any
transferee that such transferee is an institutional “accredited investor”
so long as we are required to obtain a representation letter regarding
compliance with the Act;
|
|
(iv)
|
we
are acquiring Private Certificates for our own account, not as
nominee for
any other person, and not with a present view to any distribution
or other
disposition of the Private Certificates;
|
|
(v)
|
we
agree the Private Certificates must be held indefinitely by us
(and may
not be sold, pledged, hypothecated or in any way disposed of) unless
subsequently registered under the Act and any applicable state
securities
or “Blue Sky” laws or an exemption from the registration requirements of
the Act and any applicable state securities or “Blue Sky” laws is
available;
|
|
(vi)
|
we
agree that in the event that at some future time we wish to dispose
of or
exchange any of the Private Certificates (such disposition or exchange
not
being currently foreseen or contemplated), we will not transfer
or
exchange any of the Private Certificates unless:
|
|
(A)
(1) the sale is to an Eligible Purchaser (as defined below), (2)
if
required by the Pooling and Servicing Agreement (as defined below)
a
letter to substantially the same effect as either this letter or,
if the
Eligible Purchaser is a Qualified Institutional Buyer as defined
under
Rule 144A of the Act, the Rule 144A and Related Matters Certificate
in the
form attached to the Pooling and Servicing Agreement (as defined
below)
(or such other documentation as may be acceptable to the Securities
Administrator) is executed promptly by the purchaser and delivered
to the
addressees hereof and (3) all offers or solicitations in connection
with
the sale, whether directly or through any agent acting on our behalf,
are
limited only to Eligible Purchasers and are not made by means of
any form
of general solicitation or general advertising whatsoever;
and
|
|
|
(B)
if the Private Certificate is not registered under the Act (as
to which we
acknowledge you have no obligation), the Private Certificate is
sold in a
transaction that does not require registration under the Act and
any
applicable state securities or “Blue Sky” laws and, if the Securities
Administrator or HSBC Bank USA, National Association, as trustee
(the
“Trustee”) so requests, a satisfactory Opinion of Counsel is furnished to
such effect, which Opinion of Counsel shall be an expense of the
transferor or the transferee;
|
|
|
(vii)
|
we
agree to be bound by all of the terms (including those relating
to
restrictions on transfer) of the Pooling and Servicing Agreement,
pursuant
to which the Trust was formed; we have reviewed carefully and understand
the terms of the Pooling and Servicing Agreement;
|
|
(viii)
|
we
either: (i) are not acquiring the Private Certificate directly
or
indirectly by, or on behalf of, an employee benefit plan or other
retirement arrangement which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, and/or section
4975 of
the Internal Revenue Code of 1986, as amended, or (ii) in the case
of a
Class X, Class P or Class R Certificate, are providing the opinion
of
counsel specified in Section 6.02(b) of the Agreement.
|
|
(ix)
|
we
understand that each of the Class [X][P][R][R-X] Certificates bears,
and
will continue to bear, legends substantially to the following effect:
“THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED
OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT
AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A
“QIB”),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT
OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
“INSTITUTIONAL ACCREDITED INVESTOR” WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY
ENTITY IN
WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING
NOT
FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO
(A) THE
RECEIPT BY THE SECURITIES ADMINISTRATOR OF A LETTER SUBSTANTIALLY
IN THE
FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE SECURITIES
ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES
ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS
IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR
IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION.
|
|
NO TRANSFER
OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(b) OF THE AGREEMENT
|
“Eligible
Purchaser”
means
a
corporation, partnership or other entity which we have reasonable grounds
to
believe and do believe (i) can make representations with respect to itself
to
substantially the same effect as the representations set forth herein, and
(ii)
is either a Qualified Institutional Buyer as defined under Rule 144A of the
Act
or an institutional “Accredited Investor” as defined under Rule 501 of the
Act.
Terms
not
otherwise defined herein shall have the meanings assigned to them in the
Pooling
and Servicing Agreement, dated as of January 1, 2007, between Nomura Home
Equity
Loan, Inc., as depositor, Nomura Credit & Capital, Inc., as sponsor, GMAC
Mortgage, LLC, as a servicer, Xxxxx Fargo Bank, N.A., as master servicer
(the
“Master Servicer”) and securities administrator (the “Securities Administrator”)
and HSBC Bank USA, National Association, as trustee (the “Trustee”) (the
“Pooling and Servicing Agreement’).
If
the
Purchaser proposes that its Certificates be registered in the name of a nominee
on its behalf, the Purchaser has identified such nominee below, and has caused
such nominee to complete the Nominee Acknowledgment at the end of this
letter.
Name
of
Nominee (if any): _______________________________
IN
WITNESS WHEREOF, this document has been executed by the undersigned who is
duly
authorized to do so on behalf of the undersigned Eligible Purchaser on the
___
day of ________, 20___.
|
Very
truly yours,
|
||||||||
|
[PURCHASER]
|
||||||||
|
By:
|
||||||||
|
(Authorized
Officer)
|
||||||||
|
[By:
|
||||||||
|
Attorney-in-fact]
|
||||||||
Nominee
Acknowledgment
The
undersigned hereby acknowledges and agrees that as to the Certificates being
registered in its name, the sole beneficial owner thereof is and shall be
the
Purchaser identified above, for whom the undersigned is acting as
nominee.
|
[NAME
OF NOMINEE]
|
||||||||
|
By:
|
||||||||
|
(Authorized
Officer)
|
||||||||
|
[By:__________________________________
|
||||||||
|
Attorney-in-fact]
|
||||||||
EXHIBIT
H
FORM
OF ADDITIONAL DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A. as Securities Administrator
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000-0000
Fax:
(000) 000-0000
E-mail:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Nomura
Home Equity Loan, Inc.
Two
World
Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Corporate Trust Services - Nomura Home Equity Loan, Inc., Alternative Loan
Trust,
Series 2007-1, Asset-Backed Certificates -SEC REPORT PROCESSING
RE:
**Additional Form [10-K][10-D][8-K] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Pooling and Servicing Agreement, dated
as of
January 1, 2007, among the Purchaser as depositor, Nomura Credit & Capital,
Inc. as sponsor, GMAC Mortgage, LLC as a servicer, HSBC Bank USA, National
Association, as trustee and Xxxxx Fargo Bank, National Association as master
servicer and securities administrator, the Undersigned, as [ ], hereby notifies
you that certain events have come to our attention that [will][may] need
to be
disclosed on Form [10-K][10-D][8-K].
Description
of Additional Form [10-K][10-D][8-K]Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [10-K][10-D][8-K]
Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone number:
[ ]; email address: [ ].
[NAME
OF
PARTY]
as
[role]
By:
___________________________
Name:
Title:
EXHIBIT
I
DTC
LETTER OF REPRESENTATIONS
[to
be provided upon request]
EXHIBIT
J
SCHEDULE
OF MORTGAGE LOANS WITH LOST NOTES
[to
be provided upon request]
EXHIBIT
K
APPENDIX
E - Standard & Poor’s Anti-Predatory Lending
Categorization
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note
that
certain loans classified by the relevant statute as “Covered” are included in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act,
Conn.
Gen. Stat. §§ 36a-746 et seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994,
15
U.S.C. § 1639, 12 C.F.R. §§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14,
1999;
Section 16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id.§
16a-3-207) and;
|
|
High
APR Consumer Loan (id.§
16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. Rev.
Stat.
§§ 360.100 et seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq.
a
nd
209 C.M.R. §§ 40.01 et seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002,
N.J.
Rev. Stat. §§ 46:10B-22 et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home
Loans,
N.C. Gen. Stat. §§ 24-1.1E et seq.
Effective
July 1, 2000; amended October 1,
2003
(adding open-end lines of credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the
Ohio
Code), Ohio Rev. Code Xxx. §§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home
Loans
Act, S.C. Code Xxx. §§ 37-23-10 et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker
and
Servicer Act, W. Va. Code Xxx. §§ 31-17-1 et seq.
Effective
June 5, 0000
|
Xxxx
Xxxxxxxx Mortgage Loan Act Loan
|
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002,
N.J.
Rev. Stat. §§ 46:10B-22 et seq.
Effective
November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002,
N.J.
Rev. Stat. §§ 46:10B-22 et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home
Loans,
N.C. Gen. Stat. §§ 24-1.1E et seq.
Effective
July 1, 2000; amended October 1, 2003
(adding
open-end lines of credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home
Loans
Act, S.C. Code Xxx. §§ 37-23-10 et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
EXHIBIT
L
SERVICING
CRITERIA
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
Schedule
1122 (Pooling and Servicing Agreement)
Assessments
of Compliance and Attestation Reports Servicing Criteria1
|
Reg.
AB Item 1122(d) Servicing Criteria
|
Depositor
|
Sponsor
|
Servicer
|
Trustee
|
Custodian
|
Paying
Agent
|
Master
Servicer
|
Securities
Administrator
|
|
(1) General
Servicing Considerations
|
||||||||
|
(i) monitoring
performance or other triggers and events of default
|
X
|
X
|
X
|
|||||
|
(ii) monitoring
performance of vendors of activities outsourced
|
X
|
|||||||
|
(iii) maintenance
of back-up servicer for pool assets
|
||||||||
|
(iv) fidelity
bond and E&O policies in effect
|
X
|
X
|
||||||
|
(2) Cash
Collection and Administration
|
||||||||
|
(i) timing
of deposits to custodial account
|
X
|
X
|
X
|
X
|
||||
|
(ii) wire
transfers to investors by authorized personnel
|
X
|
X
|
X
|
|||||
|
(iii) advances
or guarantees made, reviewed and approved as required
|
X
|
X
|
||||||
|
(iv) accounts
maintained as required
|
X
|
X
|
X
|
X
|
||||
|
(v) accounts
at federally insured depository institutions
|
X
|
X
|
X
|
X
|
||||
|
(vi) unissued
checks safeguarded
|
X
|
X
|
X
|
|||||
|
(vii) monthly
reconciliations of accounts
|
X
|
X
|
X
|
X
|
||||
|
(3) Investor
Remittances and Reporting
|
||||||||
|
(i) investor
reports
|
X
|
X
|
X
|
X
|
||||
|
(ii) remittances
|
X
|
X
|
X
|
|||||
|
(iii) proper
posting of distributions
|
X
|
X
|
X
|
|||||
|
(iv) reconciliation
of remittances and payment statements
|
X
|
X
|
X
|
|||||
|
(4) Pool
Asset Administration
|
||||||||
|
(i) maintenance
of pool collateral
|
X
|
X
|
||||||
|
(ii) safeguarding
of pool assets/documents
|
X
|
X
|
||||||
|
(iii) additions,
removals and substitutions of pool assets
|
X
|
X
|
X
|
|||||
|
(iv) posting
and allocation of pool asset payments to pool assets
|
X
|
|||||||
|
(v) reconciliation
of servicer records
|
X
|
|||||||
|
(vi) modifications
or other changes to terms of pool assets
|
X
|
|||||||
|
(vii) loss
mitigation and recovery actions
|
X
|
|||||||
|
(viii)records
regarding collection efforts
|
X
|
|||||||
|
(ix) adjustments
to variable interest rates on pool assets
|
X
|
|||||||
|
(x) matters
relating to funds held in trust for obligors
|
X
|
|||||||
|
(xi) payments
made on behalf of obligors (such as for taxes or
insurance)
|
X
|
|||||||
|
(xii) late
payment penalties with respect to payments made on behalf of obligors
|
X
|
|||||||
|
(xiii)records
with respect to payments made on behalf of obligors
|
X
|
|||||||
|
(xiv) recognition
and recording of delinquencies, charge-offs and uncollectible
accounts
|
X
|
X
|
X
|
|||||
|
(xv) maintenance
of external credit enhancement or other support
|
X
|
X
|
X
(If required pursuant to Agreement)
|
*
The
descriptions of the Item 1122(d) servicing criteria use key words and
phrases
and are not verbatim recitations of the servicing criteria. Refer to
Regulation
AB, Item 1122 for a full description of servicing
criteria.
EXHIBIT
M
BACK-UP
CERTIFICATION
Re: __________
(the “Trust”)
Asset-Backed
Certificates, Series 2007-1
I,
[identify the certifying individual], certify to Nomura Home Equity Loan,
Inc.
(the “Depositor”), HSBC Bank USA, National Association (the “Trustee”) and Xxxxx
Fargo Bank, N.A. (the “Master Servicer”), and their respective officers,
directors and affiliates, and with the knowledge and intent that they will
rely
upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to the Master Servicer
pursuant to the Agreement (collectively, the “Servicer Servicing
Information”);
(2) Based
on
my knowledge, the Servicer Servicing Information, 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 the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be provided
by the Servicer under the Agreement has been provided to the Master
Servicer;
(4) I
am
responsible for reviewing the activities performed by the Servicer as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant
to the
Agreement, have been provided to the Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to the Master
Servicer. Any material instance of noncompliance with the Servicing Criteria
has
been disclosed in such reports.
Capitalized
terms used and not otherwise defined herein have the meanings assigned thereto
in the Pooling and Servicing Agreement (the “Agreement”), dated as of January 1,
2007, among Nomura Home Equity Loan, Inc., Nomura Credit & Capital, Inc.,
GMAC Mortgage, LLC, Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator, and HSBC Bank USA, National Association.
|
Date:
|
||
|
[Signature]
|
||
|
[Title]
|
||
EXHIBIT
N
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party
shall
be primarily responsible for reporting the information to the party identified
as responsible for preparing the Securities Exchange Act Reports pursuant
to
Section 5.16. An asterisk indicates that the Responsible Party is responsible
for aggregating the information it receives from other Responsible
Parties.
Under
Item 1 of Form 10-D: a) items marked “5.08 statement” are required to be
included in the periodic Distribution Date statement under Section 5.08,
provided by the Securities Administrator based on information received from
the
Master Servicer; and b) items marked “Form 10-D report” are required to be in
the Form 10-D report but not the 5.08 statement, provided by the party
indicated. Information under all other Items of Form 10-D is to be included
in
the Form 10-D report.
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the [Monthly Statement]
|
Servicer
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand,
and (b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor/Sponsor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction
or the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two
years and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor/Sponsor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Trustee
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer/Trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
EXHIBIT
O
CAP
AGREEMENTS
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Fax:
(000) 000-0000
|
DATE:
|
January
31, 2007
|
|
TO:
|
HSBC
Bank USA, National Association, not individually, but solely
as Trustee
with respect to the Nomura Home Equity Loan, Inc., Home Equity
Loan Trust,
Series 2007-1
|
|
ATTENTION:
|
HSBC
Bank USA, National Association
|
|
000
0xx
Xxx.
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
FACSIMILE:
|
000-000-0000
|
|
with
a copy to:
|
|
|
ATTENTION:
|
Xxxxx
Fargo Bank, N.A.
|
|
0000
Xxx Xxxxxxxxx Xxxx
|
|
|
Xxxxxxxx,
XX 00000
|
|
|
Attn:
Client Manager, NHEL 2007-1
|
|
|
FACSIMILE:
|
000-000-0000
|
|
FROM:
|
HSBC
Bank USA, National Association
|
|
TELEPHONE :
|
000-000-0000
|
|
FACSIMILE:
|
000-000-0000
|
|
SUBJECT:
|
Fixed
Income Derivatives Confirmation
|
|
REFERENCE
NUMBER:
|
453816HN/453817HN
|
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
HSBC Bank USA, National Association (“Party
A”) and
HSBC
Bank
USA, National Association, not individually, but solely as trustee of the
trust
(the “Trust”)
with
respect to the Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series
2007-1 (“Party
B”)
created
under the Pooling and Servicing Agreement, dated as of January 1, 2007,
among
Nomura Home Equity Loan, Inc., as depositor (the “Depositor”),
Nomura Credit & Capital, Inc., as sponsor (the “Sponsor”),
Xxxxx
Fargo Bank, N.A., as master servicer (the “Master
Servicer”)
and
securities administrator (the “Securities
Administrator”),
GMAC
Mortgage, LLC as servicer (the “Servicer”)
and
HSBC Bank USA, National Association, not in its individual capacity, but
solely
as trustee (the “Trustee”) (the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and
us to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit
Support
Annex to the Schedule.
| 1. |
This
Confirmation shall supplement, form a part of, and be subject
to an
agreement in the form of the ISDA Master Agreement (Multicurrency
- Cross
Border) as published and copyrighted in 1992 by the International
Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such form
on the
date hereof, with a Schedule as set forth in Item 3 of this Confirmation,
and an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject
to New York Law Only version) as published and copyrighted in
1994 by the
International Swaps and Derivatives Association, Inc., with Paragraph
13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein
shall be the
sole Transaction governed by such ISDA Master Agreement. In the
event of
any inconsistency among any of the following documents, the relevant
document first listed shall govern: (i) this Confirmation, exclusive
of
the provisions set forth in Item 3 hereof and Annex A hereto;
(ii) the
provisions set forth in Item 3 hereof; (iii) the Credit Support
Annex;
(iv) the Definitions; and (v) the ISDA Master
Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference
herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
|
2.
|
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
|
Type
of Transaction:
|
Interest
Rate Cap
|
|
Notional
Amount:
|
With
respect to any Calculation Period the lesser of:
|
|
(i)The
Calculation Amount set forth for such period in Schedule I, which
is
attached hereto and incorporated by reference into this Confirmation,
and
|
|
|
(ii)
The
aggregate Certificate Principal Balance of the Class I-M-3 Certificates
immediately preceding the Distribution Date which occurs in the
calendar
month of the Floating Rate Payer Payment Date for such Calculation
Period
(determined for this purpose without regard to any adjustment
of the
Floating Rate Payer Payment Date or Distribution Date relating
to business
days).
|
|
|
Trade
Date:
|
January
25, 2007
|
|
Effective
Date:
|
January
31, 2007
|
|
Termination
Date:
|
January
25, 2015, subject to adjustment in accordance with the Following
Business
Day Convention.
|
|
Fixed
Amount:
|
As
per side agreement
|
|
Party
A Floating Amounts:
|
|
|
Party
A
|
|
|
Period
End Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
February 25, 2007, and ending on the Termination Date, subject
to
adjustment in accordance with the Following Business Day
Convention.
|
|
Floating
Rate Payer
|
|
|
Payment
Dates:
|
Early
Payment - Two Business Days preceding the 25th
calendar day of each month during the Term of this Transaction,
commencing
February 25, 2007, and ending on the Termination Date
|
|
Cap
Rate:
|
As
set forth in Schedule I
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA;
provided, however, that if the Floating Rate Option for any Calculation
Period is greater than 8.650000%, then the Floating Rate Option
for such
Calculation Period shall be deemed to be 8.650000%.
|
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day
|
|
|
Count
Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York
|
|
Business
Day Convention:
|
Following
|
|
Calculation
Agent:
|
Party
A
|
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party
means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will
not
apply to a specific party means that the other party shall not have such
rights.
| (i) |
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will
apply to
Party B; provided, however, that Section 5(a)(i) is hereby amended
by
replacing the word “third” with the word “first”; provided, further, that
notwithstanding anything to the contrary in Section 5(a)(i),
any failure
by Party A to comply with or perform any obligation to be complied
with or
performed by Party A under the Credit Support Annex shall not
constitute
an Event of Default under Section 5(a)(i) unless (A) a Required
Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local
Business Days, and (B) such failure is not remedied on or before
the third
Local Business Day after notice of such failure is given to Party
A.
|
| (ii) |
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will
not apply to
Party B.
|
| (iii) |
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided, however, that notwithstanding anything
to the
contrary in Section 5(a)(iii)(1), any failure by Party A to comply
with or
perform any obligation to be complied with or performed by Party
A under
the Credit Support Annex shall not constitute an Event of Default
under
Section 5(a)(iii) unless (A) a Required Ratings Downgrade Event
has
occurred and been continuing for 30 or more Local Business Days,
and (B)
such failure is not remedied on or before the third Local Business
Day
after notice of such failure is given to Party
A.
|
| (iv) |
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will
not apply to
Party B.
|
| (v) |
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will
not apply to
Party B.
|
| (vi) |
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will
not apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14 , except that such
term shall not include obligations in respect of deposits received in the
ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the Shareholders’ Equity of Party A (as set forth in Party A’s Call Report) or,
if applicable, the Eligible Guarantor.
“Shareholders’
Equity” means with respect to an entity, at any time, the sum (as shown in the
most recent annual audited financial statements of such entity) of (i)
its
capital stock (including preferred stock) outstanding, taken at par value,
(ii)
its capital surplus and (iii) its retained earnings, minus (iv) treasury
stock,
each to be determined in accordance with generally accepted accounting
principles.
| (vii) |
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided that, with respect to Party B only, Section 5(a)(vii)(4)
is
hereby amended by adding after the words “against it” the words
“(excluding any proceeding or petition instituted or presented
by Party A
or its Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by
deleting the words “to (7) inclusive” and inserting lieu thereof “, (3),
(4) as amended, (5), (6) as amended, or
(7)”.
|
| (viii) |
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
not apply
to Party B.
|
(d) Termination
Events.
The
statement below that a Termination Event will apply to a specific party
means
that upon the occurrence of such a Termination Event, if such specific
party is
the Affected Party with respect to a Tax Event, the Burdened Party with
respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected
Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that
such an
event will not apply to a specific party means that such party shall not
have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have
the
right to designate an Early Termination Date in accordance with Section
6 of
this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
|
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except that,
for
purposes of the application of Section 5(b)(ii) to Party A, Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent jurisdiction,
on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to a party
to this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
|
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided that Party A shall not be entitled to designate
an Early
Termination Date by reason of a Tax Event upon Merger in respect
of which
it is the Affected Party.
|
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and
will not
apply to Party B.
|
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will
not apply to
Party B.
|
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
| (i) |
Market
Quotation will apply, provided, however, that, in the event of
a
Derivative Provider Trigger Event, the following provisions will
apply:
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted
in its
entirety and replaced with the
following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, a Firm Offer which
is (1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for
an
amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but,
without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included.
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by
Party B)
equal to:
|
(a)
|
If
a Market Quotation for the relevant Terminated Transaction or
group of
Terminated Transactions is accepted by Party B so as to become
legally
binding on or before the day falling ten Local Business Days
after the day
on which the Early Termination Date is designated, or such later
day as
Party B may specify in writing to Party A, but in either case
no later
than one Local Business Day prior to the Early Termination Date
(such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
(b)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated Transactions
has been accepted by Party B so as to become legally binding
and one or
more Market Quotations from
Approved Replacements have
been made and remain capable of becoming legally binding upon
acceptance,
the Settlement Amount shall equal the Termination Currency Equivalent
of
the amount (whether positive or negative) of the lowest of such
Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of
such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed
as a
negative number with the largest absolute value);
or
|
|
(c)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotation from an Approved Replacement remains capable of becoming
legally
binding upon acceptance, the Settlement Amount shall equal Party
B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect
of the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid
Amounts
owing to Party B; provided, however, that (x) the amounts payable under
the
immediately preceding clauses (II) and (III) shall be subject to netting
in
accordance with Section 2(c) of this Agreement and (y) notwithstanding
any other
provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted-off against any amount payable
by
Party B under the immediately preceding clause (I).”
|
(E)
|
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations from Approved Replacements
remain
capable of becoming legally binding upon acceptance, Party B
shall be
entitled to accept only the lowest of such Market Quotations
(for the
avoidance of doubt, the lowest of such Market Quotations shall
be the
lowest Market Quotation of such Market Quotations expressed as
a positive
number or, if any of such Market Quotations is expressed as a
negative
number, the Market Quotation expressed as a negative number with
the
largest absolute value).
|
| (ii) |
The
Second Method will apply.
|
(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
|
(i)
|
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
|
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement. In making this representation,
it
may rely on: (i) the accuracy of any representations made by the other
party
pursuant to Section 3(f) of this Agreement; (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the
accuracy and effectiveness of any document provided by the other party
pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where reliance
is
placed on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(B)
Party
B
makes the following representation(s):
None.
(ii) Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
Party
A
is a national banking association organized under the federal laws of the
United
States and its U.S. taxpayer identification number is 00-0000000.
(B)
Party
B
makes the following representation(s):
None.
|
(b)
|
Tax
Provisions.
|
|
(i)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party
B shall not
be required to pay any additional amounts referred to
therein.
|
|
(ii)
|
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
|
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
Part
3. Agreement
to Deliver Documents.
(a) For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
|
Party
A
|
A
correct, complete and duly executed U.S. Internal Revenue Service
Form W-9
or other applicable form (or successor thereto), together with
appropriate
attachments, that eliminates U.S. federal withholding and backup
withholding Tax on payments to Party A under this
Agreement.
|
(i)
upon execution of this Agreement, (ii) on or before the first
payment date
under this Agreement, including any Credit Support Document,
(iii)
promptly upon the reasonable demand by Party B, (iv) prior to
the
expiration or obsolescence of any previously delivered form,
and (v)
promptly upon the information on any such previously delivered form
becoming inaccurate or incorrect
|
|
|
Party
B
|
Party
B will deliver at closing a correct, complete and duly executed
U.S.
Internal Revenue Service Form W-9 or other applicable form (or
successor
thereto), together with appropriate attachments, and may deliver
other
tax forms
relating to the beneficial owner of payments to Party B under
this
Agreement from time to time
|
(i)
upon execution of this Agreement, (ii) on or before the first
payment date
under this Agreement, including any Credit Support Document,
(iii)
promptly upon the reasonable demand by Party A, (iv) prior to
the
expiration or obsolescence of any previously delivered form,
and (v)
promptly upon the information on any such previously delivered form
becoming inaccurate or incorrect
|
(b) For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for
it to execute
and deliver the Agreement, this Confirmation, and any Credit
Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the
incumbency
and authority of the respective officers of the party signing
the
Agreement, this Confirmation, and any relevant Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
|
Party
A
|
Annual
Financial Statements as set forth in Party A’s Call Report containing
consolidated financial statements certified by independent certified
public accountants and prepared in accordance with generally
accepted
accounting principles in the country in which Party A is
organized
|
Promptly
upon request made by Party B
|
Yes
|
|
|
Party
A
|
Quarterly
Financial Statements as set forth in Party A’s Call Report containing
unaudited, consolidated financial statements of Party A’s fiscal quarter
prepared in accordance with generally accepted accounting principles
in
the country in which Party A is organized
|
Promptly
upon request made by Party B
|
Yes
|
|
|
Party
A
|
An
opinion of counsel to Party A satisfactory in form and substance
to Party
B
|
Upon
the execution and delivery of this Agreement
|
No
|
Part
4. Miscellaneous.
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
|
Address
for notices or communications to Party A:
|
Address:
|
000
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
|
|
Attention:
|
Xxxxxxxxx
XxXxxxxx
|
|
Facsimile:
|
000-000-0000
|
|
Telephone:
|
000-000-0000
|
Please
direct all settlement inquiries to:
HSBC
Bank USA, National Association
Derivative
Settlements
|
Attention:
|
Xxxxxxx
Xxxxxxx
|
|
Telephone:
|
(000)
000-0000
|
|
Fax:
|
(000)
000-0000
|
(For
all
purposes)
Address
for notices or communications to Party B:
|
Attention:
|
HSBC
Bank USA, National Association
|
|
000
0xx
Xxx.
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Facsimile:
|
000-000-0000
|
|
with
a copy to:
|
|
|
Attention:
|
Xxxxx
Fargo Bank, N.A.
|
|
0000
Xxx Xxxxxxxxx Xxxx
|
|
|
Xxxxxxxx,
XX 00000
|
|
|
Attn:
Client Manager, NHEL 2007-1
|
|
|
Facsimile:
|
000-000-0000
|
(For
all
purposes)
(b) Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this Agreement;
neither
Party A nor Party B has any Offices other than as set forth in
the Notices
Section and Party A agrees that, for purposes of Section 6(b)
of this
Agreement, it shall not in the future have any Office other than
one in
the United States.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A; provided, however, that if
an Event of
Default shall have occurred with respect to Party A, Party B
shall have
the right to appoint as Calculation Agent a third party, reasonably
acceptable to Party A, the cost for which shall be borne by Party
A.
|
(f) Credit
Support Document.
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
|
Party
B:
|
The
Credit Support Annex, solely in respect of Party B’s obligations under
Paragraph 3(b) of the Credit Support
Annex.
|
|
(g)
|
Credit
Support Provider.
|
|
Party
A:
|
The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
|
|
Party
B:
|
None.
|
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the
State of
New York shall govern their rights and duties in whole, without
regard to
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will
apply to
each Transaction hereunder.
|
|
(j)
|
Affiliate.“Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party A and Party B shall be deemed to have no Affiliates
for
purposes of this Agreement, including for purposes of Section
6(b)(ii).
|
Part
5. Others
Provisions.
|
(a)
|
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions
as published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a
“Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
|
(b)
Amendments
to ISDA Master Agreement.
|
(i)
|
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
|
(ii)
Conditions
Precedent. Section
2(a)(iii) is hereby amended by adding the following at the end thereof:
Notwithstanding
anything to the contrary in Section 2(a)(iii)(1), if an Event of Default
with
respect to Party B or Potential Event of Default with respect to Party
B has
occurred and been continuing for more than 30 Local Business Days and no
Early
Termination Date in respect of the Affected Transactions has occurred or
been
effectively designated by Party A, the obligations of Party A under Section
2(a)(i) shall cease to be subject to the condition precedent set forth
in
Section 2(a)(iii)(1) with respect to such specific occurrence of such Event
of
Default or such Potential Event of Default (the “Specific
Event”);
provided, however, for the avoidance of doubt, the obligations of Party
A under
Section 2(a)(i) shall be subject to the condition precedent set forth in
Section
2(a)(iii)(1) (subject to the foregoing) with respect to any subsequent
occurrence of the same Event of Default with respect to Party B or Potential
Event of Default with respect to Party B after the Specific Event has ceased
to
be continuing and with respect to any occurrence of any other Event of
Default
with respect to Party B or Potential Event of Default with respect to Party
B
that occurs subsequent to the Specific Event.
|
(iii)
|
Change
of Account.
Section 2(b) is hereby amended by the addition of the following
after the
word “delivery” in the first line
thereof:
|
“to
another account in the same legal and tax jurisdiction as the original
account”.
|
(iv)
|
Representations.
Section 3 is hereby amended by adding at the end thereof the
following
subsection (g):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its
own legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and
upon any
advice from such advisors as it has deemed necessary and not
upon any view
expressed by the other party.
|
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and
has made its
own decision to enter into the Transaction and (ii) It understands
the
terms, conditions and risks of the Transaction and is willing
and able to
accept those terms and conditions and to assume those risks,
financially
and otherwise.
|
|
(3)
|
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
|
|
(4)
|
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible swap participant” as such term is
defined in, Section 35.1(b)(2) of the regulations (17 C.F.R.
35)
promulgated under, and an “eligible contract participant” as defined in
Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
|
|
(v)
|
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words
“or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) by deleting the words “to transfer” and inserting the words “to
effect a Permitted Transfer” in lieu
thereof.
|
|
(vi)
|
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph (i) and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
|
|
(vii)
|
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby
amended by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events.
The following Additional Termination Events will
apply:
|
| (i) |
First
Rating Trigger Collateral.
If
(A) it is not the case that a Xxxxx’x Second Trigger Ratings Event has
occurred and been continuing for 30 or more Local Business Days
and (B)
Party
A has failed to comply with or perform any obligation to be complied
with
or performed by Party A in accordance with the Credit Support
Annex, then
an Additional Termination Event shall have occurred with respect
to Party
A and Party A shall be the sole Affected Party with respect to
such
Additional Termination Event.
|
| (ii) |
Second
Rating Trigger Replacement.
If
(A) a Required Ratings Downgrade Event has occurred and been
continuing
for 30 or more Local Business Days and (B) (i) at least one Eligible
Replacement has made a Firm Offer to be the transferee of all
of Party A’s
rights and obligations under this Agreement (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible
Replacement
upon acceptance by the offeree) and/or (ii) an Eligible Guarantor
has made
a Firm Offer to provide an Eligible Guarantee (and such Firm
Offer remains
an offer that will become legally binding upon such Eligible
Guarantor
immediately upon acceptance by the offeree), then an Additional
Termination Event shall have occurred with respect to Party A
and Party A
shall be the sole Affected Party with respect to such Additional
Termination Event.
|
| (iii) |
Optional
Termination of Securitization.
An
Additional Termination Event shall occur upon the notice to
Certificateholder of an optional termination becoming unrescindable
in
accordance with Article x of the Pooling and Servicing Agreement,
Party B
shall be the sole Affected Party with respect to such Additional
Termination Event; provided, however that notwithstanding anything
to the
contrary in Section 6(b)(iv), only Party B may designate an Early
Termination Date in respect of this Additional Termination Event.
|
| (iv) |
Information
Required by Regulation AB. If
Party A fails to comply with the provisions of Part 5(e) upon
the
occurrence of a Swap Disclosure Event, then an Additional Termination
Event shall have occurred with respect to Party A and Party A
shall be the
sole Affected Party with respect to such Additional Termination
Event
|
|
(d)
|
Required
Ratings Downgrade Event.
In
the event that no Relevant Entity has credit ratings at least
equal to the
Required Ratings Threshold (such event, a “Required
Ratings Downgrade Event”),
then Party A shall, as soon as reasonably practicable and so
long as a
Required Ratings Downgrade Event is in effect, at its own expense,
using
commercially reasonable efforts, procure either (A) a Permitted
Transfer
or (B) an Eligible Guarantee.
|
(e)
Compliance
with Regulation AB. (i)
For
purposes of Item 1115 of Subpart 229.1100 - Asset Backed Securities (Regulation
AB) (17 C.F.R. ss.ss.229.1100 - 229.1123) (“Regulation AB”) under the Securities
Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), as amended and interpreted by the Securities and Exchange
Commission and its staff, if the Depositor or Party B makes a determination,
acting reasonably and in good faith, that (x) the applicable “significance
percentage” with respect to this Agreement has been reached, and (y) it has a
reporting obligation under the Exchange Act (a “Swap Disclosure Event”), then
Party A shall (or shall cause its Credit Support Provider to), within ten
(10)
calendar days after notice to that effect, at its sole expense, take one
of the
following actions (each subject to satisfaction of the Rating Agency Condition):
(1) provide (including, if permitted by Regulation AB, provision by reference
to
reports filed pursuant to the Exchange Act or otherwise publicly available
information): (A) the financial data required by Item 301 of Regulation
S-K (17
C.F.R. §229.301), pursuant to Item 1115(b)(1); (B) financial statements meeting
the requirements of Regulation S-X (17 C.F.R. §§210.1-01 through 210.12-29, but
excluding 17 C.F.R. ss. 210.3-05 and Article 11 of Regulation S-X (17 C.F.R.
ss.
ss. 210.11-01 through 210.11-03)), pursuant to Item 1115(b)(2); or (C)
such
other financial information as may at the time be required or permitted
to be
provided in satisfaction of the requirements of Item 1115(b), together
with
accountants consents and/or a procedure letter relating thereto; or (2)
secure
an Approved Replacement that is able to comply with the requirements of
Item
1115(b) of Regulation AB to replace Party A as party to this Agreement,
on
substantially similar terms, the debt rating of which entity (or credit
support
provider therefor) meets or exceeds the applicable requirements of the
applicable Rating Agencies.
(ii)
For
so long as the aggregate significance percentage is 10% or more, Party
A shall
(or shall cause its Credit Support Provider to) provide any updates to
the
information provided pursuant to clause (i)(1) above to the Depositor within
five (5) Business Days following availability thereof (but in no event
more than
45 days after the end of each of Party A’s Credit Support Provider’s fiscal half
for any half-year update, and in no event more than 90 days after the end
of
each of Party A’s Credit Support Provider’s fiscal year for any annual
update).
(iii)
All
information provided pursuant to clauses (i)(1) and (ii) above (all such
information, “Swap Financial Disclosure”) shall be in a form suitable for
conversion to the format required for filing by the Depositor with the
Commission via the Electronic Data Gathering and Retrieval System (XXXXX).
In
addition, any such information, if audited, shall be accompanied by any
necessary auditor’s consents or, if such information is unaudited, shall be
accompanied by an appropriate agreed-upon procedures letter from Party
A’s
accountants. If permitted by Regulation AB, any such information may be
provided
by reference to or incorporation by reference from reports filed pursuant
to the
Exchange Act.
(iv)
Party A agrees that, in the event that Party A provides Swap Financial
Disclosure to Depositor in accordance with paragraph (iii) above or causes
its
Credit Support Provider to provide Swap Financial Disclosure to Depositor
in
accordance with paragraph (iii) above, it will indemnify and hold harmless
Depositor, its respective directors or officers and any person controlling
Depositor, from and against any and all losses, claims, damages and liabilities
(any “Damage”) caused by any untrue statement or alleged untrue statement of a
material fact contained in such Swap Financial Disclosure or caused by
any
omission or alleged omission to state in such Swap Financial Disclosure
a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however that the foregoing shall not apply to any
Damage
caused by the negligence or any willful action of Depositor or any other
party
(other than Party A or any of its affiliates or any of their respective
agents),
including without limitation any failure to calculate the Significance
Percentage according to the terms of this Agreement or to make any filing
as and
when required under Regulation AB.
(v)
Third
Party Beneficiary. The Depositor shall be an express third party beneficiary
of
this Agreement as if a party hereto to the extent of the Depositor’s rights
explicitly specified in this Part 5(e).
|
(f)
|
Transfers.
|
(i)
Section
7
is hereby amended to read in its entirety as follows:
“Except
with respect to any Permitted Transfer pursuant to Section 6(b)(ii), Part
5(d),
or the succeeding sentence, neither Party A nor Party B is permitted to
assign,
novate or transfer (whether by way of security or otherwise) as a whole
or in
part any of its rights, obligations or interests under the Agreement or
any
Transaction unless (a) the prior written consent of the other party is
obtained,
and (b) the Rating Agency Condition has been satisfied with respect to
S&P.
At any time at which no Relevant Entity has credit ratings at least equal
to the
Approved Ratings Threshold, Party A may make a Permitted Transfer.”
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains
an offer that
will become legally binding upon acceptance by Party B) to be
the
transferee pursuant to a Permitted Transfer, Party B shall, at
Party A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such transfer.
|
|
(g)
|
Non-Recourse.
Party A acknowledges and agree that, notwithstanding any provision
in this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely , in
accordance
with the priority of payments and other terms of the Pooling
and Servicing
Agreement and that Party A will not have any recourse to any
of the
directors, officers, employees, shareholders or affiliates of
the Party B
with respect to any claims, losses, damages, liabilities, indemnities
or
other obligations in connection with any transactions contemplated
hereby.
This provision will survive the termination of this
Agreement.
|
|
(h)
|
Limitation
on Events of Default.
Notwithstanding the provisions of Sections 5 and 6, if at any
time and so
long as Party B has satisfied in full all its payment obligations
under
Section 2(a)(i) and has at the time no future payment obligations,
whether
absolute or contingent, under such Section, then unless Party
A is
required pursuant to appropriate proceedings to return to Party
B or
otherwise returns to Party B upon demand of Party B any portion
of any
such payment, (a) the occurrence of an event described in Section
5(a)
with respect to Party B shall
not constitute an Event of Default or Potential
Event of Default with respect to Party B as Defaulting Party
and (b) Party
A shall be entitled to designate an Early Termination Date pursuant
to
Section 6 only as a result of the occurrence of a Termination
Event set
forth in either Section 5(b)(i) or 5(b)(ii) with respect to Party
A as the
Affected Party, or Section 5(b)(iii) with respect to Party A
as the
Burdened Party. For purposes of the Transaction to which this
Agreement
relates, Party B’s only obligation under Section 2(a)(i) is to pay the
Fixed Amount on the Fixed Amount Payer Payment
Date
|
|
(i)
|
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Cap Rating Agency has been given prior written notice of
such
designation or transfer.
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|
(j)
|
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or
Part
1(f)(i)(D) hereof, and notwithstanding any other provision of
this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off,
net, recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”
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|
(k)
|
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Cap Agencies
has
been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to
S&P.
|
|
(l)
|
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving
of notice or
passage of time or both would constitute) an Event of Default
or
Termination Event with respect to such party, promptly to give
the other
Party and to each Cap Rating Agency notice of such event or condition;
provided that failure to provide notice of such event or condition
pursuant to this Part 5(l) shall not constitute an Event of Default
or a
Termination Event.
|
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B or the
trust
created pursuant to the Pooling and Servicing Agreement, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or state bankruptcy or similar law for a
period of
one year (or, if longer, the applicable preference period) and one day
following
payment in full of the Certificates and any Notes. This provision will
survive
the termination of this Agreement.
|
(n)
|
Trustee
Limitation of Liability. It
is expressly understood and agreed by the parties hereto that
(a) this
Agreement is executed and delivered by HSBC Bank USA, National
Association, not individually or personally but solely as the
Trustee, in
the exercise of the powers and authority conferred and vested
in it under
the Pooling and Servicing Agreement, (b) the representations,
warranties,
covenants, undertakings and agreements herein made on the part
of the
trust created pursuant to the Pooling and Servicing Agreement
(the
“Trust”) are made and intended not as personal representations,
undertakings and agreements by HSBC Bank USA, National Association
but are
made and intended for the purpose of binding only the Trust,
(c) nothing
herein contained shall be construed as creating any liability
on HSBC Bank
USA, National Association, individually or personally, to perform
any
covenant either expressed or implied contained herein, all such
liability,
if any, being expressly waived by the parties who are signatories
to this
Agreement and by any person claiming by, through or under such
parties and
(d) under no circumstances shall HSBC Bank USA, National Association
be
personally liable for the payment of any indemnity, indebtedness,
fees or
expenses of the Trust or be liable for the breach or failure
of any
obligation, representation, warranty or covenant made or undertaken
by the
Trust under this Agreement.
|
|
(o)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) in any respect,
the
remaining terms, provisions, covenants, and conditions hereof
shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long
as this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations
of the
parties; provided, however, that this severability provision
shall not be
applicable if any provision of Section 2, 5, 6, or 13 (or any
definition
or provision in Section 14 to the extent it relates to, or is
used in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace
any
invalid or unenforceable term, provision, covenant or condition with a
valid or
enforceable term, provision, covenant or condition, the economic effect
of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Agent
for Party B. Party
A acknowledges that the Securities Administrator has been appointed
as
agent under the Pooling and Servicing Agreement to carry out
certain
functions on behalf of Party B, and that the Securities Administrator
shall be entitled to give notices and to perform and satisfy
the
obligations of Party B hereunder on behalf of Party
B.
|
|
(q)
|
Escrow
Payments.
If
(whether by reason of the time difference between the cities
in which
payments are to be made or otherwise) it is not possible for
simultaneous
payments to be made on any date on which both parties are required
to make
payments hereunder, either Party may at its option and in its
sole
discretion notify the other Party that payments on that date
are to be
made in escrow. In this case deposit of the payment due earlier
on that
date shall be made by 2:00 pm (local time at the place for the
earlier
payment) on that date with an escrow agent selected by the notifying
party, accompanied by irrevocable payment instructions (i) to
release the
deposited payment to the intended recipient upon receipt by the
escrow
agent of the required deposit of any corresponding payment payable
by the
other party on the same date accompanied by irrevocable payment
instructions to the same effect or (ii) if the required deposit
of the
corresponding payment is not made on that same date, to return
the payment
deposited to the party that paid it into escrow. The party that
elects to
have payments made in escrow shall pay all costs of the escrow
arrangements.
|
|
(r)
|
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at
any time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
|
|
(s)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in
respect of
any in respect of any suit, action or proceeding relating to
this
Agreement or any Credit Support Document.
|
|
(t)
|
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency -
Crossborder) as published and copyrighted in 1992 by the International
Swaps and Derivatives Association,
Inc.
|
|
(u)
|
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party A
to Party B
under this Agreement shall be paid to the account specified in
Item 4 of
this Confirmation, below.
|
|
(v)
|
Additional
representations.
|
|
(i)
|
Representations
of Party A.
Party A represents to Party B on the date on which Party A enters
into
each Transaction that:--
|
|
(1)
|
Party
A’s obligations under this Agreement rank pari passu with all of
Party A’s
other unsecured, unsubordinated obligations except those obligations
preferred by operation of law.
|
|
(2)
|
Party
A is a bank subject to the requirements of 12 U.S.C. § 1823(e), its
execution, delivery and performance of this Agreement (including
the
Credit Support Annex and each Confirmation) have been approved
by its
board of directors or its loan committee, such approval is reflected
in
the minutes of said board of directors or loan committee, and
this
Agreement (including the Credit Support Annex and each Confirmation)
will
be maintained as one of its official records continuously from
the time of
its execution (or in the case of any Confirmation, continuously
until such
time as the relevant Transaction matures and the obligations
therefor are
satisfied in full).
|
|
(ii)
|
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement that it is entering into the Agreement and the
Transaction
as principal and not as agent of any person. Party B represents
to Party A
on the date on which Party B enters into this Agreement that
it is
entering into the Agreement and the Transaction in its capacity
as
Trustee.
|
|
(w)
|
Acknowledgements.
|
|
(ii)
|
Bankruptcy
Code.
Subject to Part 5(m), without limiting the applicability if any,
of any
other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy
Code”) (including without limitation Sections 362, 546, 556, and 560
thereof and the applicable definitions in Section 101 thereof),
the
parties acknowledge and agree that all Transactions entered into
hereunder
will constitute “forward contracts” or “swap agreements” as defined in
Section 101 of the Bankruptcy Code or “commodity contracts” as defined in
Section 761 of the Bankruptcy Code, that the rights of the parties
under
Section 6 of this Agreement will constitute contractual rights
to
liquidate Transactions, that any margin or collateral provided
under any
margin, collateral, security, pledge, or similar agreement related
hereto
will constitute a “margin payment” as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled to
the rights
under, and protections afforded by, Sections 362, 546, 556, and
560 of the
Bankruptcy Code.
|
|
(x)
|
[Reserved]
|
|
(y)
|
Third
Party Beneficiary.
Xxxxx Fargo Bank, N.A. is a third party beneficiary of this agreement
and
is entitled to the rights and benefits hereunder and may enforce
the
provisions hereof as if were a party
hereto.
|
(z)
Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold and the Moody’s First Trigger
Ratings Threshold.
“Approved
Replacement” means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b), (c) and (d) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Cap
Rating Agencies”
means,
with respect to any date of determination, each of S&P and
Moody’s,
to the
extent that each such rating agency is then providing a rating for any
of the
Nomura
Home Equity Loan, Inc., Home Equity Loan Trust, Series 2007-2 (the
“Certificates”) or any notes backed by the Certificates (the
“Notes”).
“Derivative
Provider Trigger Event”
means
(i) an Event of Default with respect to which Party A is a Defaulting Party,
(ii) a Termination Event with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of Party
A or
an Eligible Replacement to Party B under this Agreement that is provided
by an
Eligible Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P, and either (A) a law firm
has given a legal opinion confirming that none of the guarantor’s payments to
Party B under such guarantee will be subject to Tax
collected by withholding or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to Tax collected by withholding, such guarantor
is
required to pay such additional amount as is necessary to ensure that the
net
amount actually received by Party B (free and clear of any Tax collected
by
withholding) will equal the full amount Party B would have received had
no such
withholding been required.
“Eligible
Guarantor” means
an
entity that (A) has credit ratings at least equal to the S&P Approved
Ratings Threshold and (B) has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold, provided, for the avoidance of doubt,
that an Eligible Guarantee of an Eligible Guarantor with credit ratings
below
the Moody’s First Trigger Ratings Threshold will not cause a Collateral Event
(as defined in the Credit Support Annex) not to occur or continue with
respect
to Moody’s.
“Eligible
Replacement”
means an
entity (i) (a) that has credit ratings from S&P at least equal to the
S&P Approved Ratings Threshold, and (b) has credit ratings from Moody’s at
least equal to the Moody’s Second Trigger Ratings Threshold, provided, for the
avoidance of doubt, that an Eligible Replacement with credit ratings below
the
Moody’s First Trigger Ratings Threshold will not cause a Collateral Event (as
defined in the Credit Support Annex) not to occur or continue with respect
to
Moody’s, or (ii) the present and future obligations (for the avoidance of doubt,
not limited to payment obligations) of which entity to Party B under this
Agreement are guaranteed pursuant to an Eligible Guarantee.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such
Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as
the
counterparty to this Agreement or enter a Replacement Transaction that
will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or
counterparty rating from
Moody’s of “A2” and a short-term unsecured and unsubordinated debt rating from
Moody’s of “Prime-1”, or (ii) if such entity does not have a short-term
unsecured and unsubordinated debt rating or counterparty rating from Moody’s, a
long-term unsecured and unsubordinated debt rating or counterparty rating
from
Moody’s of “A1”.
“Moody’s
Second Trigger Ratings Event” means
that no
Relevant Entity has credit ratings from Moody’s at least equal to the Moody’s
Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer” means
a
transfer by novation by Party A pursuant to Section 6(b)(ii), Part 5(d),
or the
second sentence of Section 7 (as amended herein) to a transferee (the
“Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with
respect to which transfer each of the following conditions is
satisfied:
(a) the
Transferee is an Eligible Replacement; (b) Party A and the Transferee are
both
“dealers in notional principal contracts” within the meaning of Treasury
regulations section 1.1001-4; (c) as of the date of such transfer the Transferee
would not be required to withhold or deduct on account of Tax from any
payments
under this Agreement or would be required to gross up for such Tax under
Section
2(d)(i)(4); (d) an Event of Default or Termination Event would not occur
as a
result of such transfer; (e) pursuant to a written instrument (the “Transfer
Agreement”),
the
Transferee acquires and assumes all rights and obligations of Party A under
the
Agreement and the relevant Transaction; (f) Party B shall have determined,
in
its sole discretion, acting in a commercially reasonable manner, that such
Transfer Agreement is effective to transfer to the Transferee all, but
not less
than all, of Party A’s rights and obligations under the Agreement and all
relevant Transactions; (g) Party A will be responsible for any costs or
expenses
incurred in connection with such transfer (including any replacement cost
of
entering into a replacement transaction); (h) either (A) Moody’s has been given
prior written notice of such transfer and the Rating Agency Condition is
satisfied with respect to S&P or (B) each Swap Rating Agency has been given
prior written notice of such transfer and such transfer is in connection
with
the assignment and assumption of this Agreement without modification of
its
terms, other than party names, dates relevant to the effective date of
such
transfer, tax representations (provided that the representations in Part
2(a)(i)
are not modified) and any other representations regarding the status of
the
substitute counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2)
or Part 5(v)(ii), notice information and account details; and such transfer
otherwise complies with the terms of the Pooling and Servicing
Agreement.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Cap Rating Agency specified in connection with such proposed act or
omission, that the party acting or failing to act must consult with each
of the
specified Cap Rating Agencies and receive from each such Cap Rating Agency
a
prior written confirmation that the proposed action or inaction would not
cause
a downgrade or withdrawal of the then-current rating of any Certificates
or
Notes.
“Relevant
Entity” means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are
not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
shall
have the meaning assigned thereto in Part 5(d).
“Required
Ratings Threshold” means
each of the S&P Required Ratings Threshold, and the Moody’s Second Trigger
Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
S&P of “BBB+”.
[Remainder
of this page intentionally left blank.]
4. Account
Details and Settlement Information:
|
Payments
to Party A:
|
HSBC
Bank USA, National Association
|
|
ABA
# 000-000-000
|
|
|
For
credit to Department 299
|
|
|
A/C:
000-00000-0
|
|
|
HSBC
Derivative Products Group
|
|
|
Payments
to Party B:
|
Xxxxx
Fargo Bank, N.A.
|
|
ABA
# 000-000-000
|
|
|
For
Credit to: SAS Clearing
|
|
|
A/C:
0000000000
|
|
|
FFC:
NHEL 2007-1 50984501 Net Wac Reserve
Fund
|
This
Agreement may be executed in several counterparts, each of which shall
be deemed
an original but all of which together shall constitute one and the same
instrument.
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
HSBC
BANK
USA, NATIONAL ASSOCIATION
|
By:
|
/s/ Xxxxxxx Xxxxxxxx |
|
Name:
|
Xxxxxxx Xxxxxxxx |
|
Title:
|
Assistant Vice President |
|
By:
|
/s/ Xxxxxxxx Xxxx |
|
Name:
|
Xxxxxxxx Xxxx |
|
Title:
|
Assistant Vice President |
Party
B,
acting through its duly authorized signatory, hereby agrees to, accepts
and
confirms the terms of the foregoing as of the date hereof.
HSBC
BANK
USA, NATIONAL ASSOCIATION, NOT INDIVIDUALLY, BUT SOLELY AS TRUSTEE WITH
RESPECT
TO THE NOMURA HOME EQUITY LOAN, INC., HOME EQUITY LOAN TRUST, SERIES
2007-1
|
By:
|
/s/ Xxxxx Xxxxx |
|
Name:
|
Xxxxx Xxxxx |
|
Title:
|
Vice President |
SCHEDULE
I
(all
such
dates subject to adjustment in accordance with the Following Business Day
Convention)
|
For
the Calculation Periods
|
Calculation
Amount
|
Cap
Rate
|
|
|
From
and including:
|
To
but excluding
|
in
USD:
|
|
|
The
Effective Date
|
February
25, 2007
|
5,490,000.00
|
7.028030%
|
|
February
25, 2007
|
March
25, 2007
|
5,490,000.00
|
6.076850%
|
|
March
25, 2007
|
April
25, 2007
|
5,490,000.00
|
5.309770%
|
|
April
25, 2007
|
May
25, 2007
|
5,490,000.00
|
5.548470%
|
|
May
25, 2007
|
June
25, 2007
|
5,490,000.00
|
5.309840%
|
|
June
25, 2007
|
July
25, 2007
|
5,490,000.00
|
5.548540%
|
|
July
25, 2007
|
August
25, 2007
|
5,490,000.00
|
5.309910%
|
|
August
25, 2007
|
September
25, 2007
|
5,490,000.00
|
5.309950%
|
|
September
25, 2007
|
October
25, 2007
|
5,490,000.00
|
5.548660%
|
|
October
25, 2007
|
November
25, 2007
|
5,490,000.00
|
5.310050%
|
|
November
25, 2007
|
December
25, 2007
|
5,490,000.00
|
5.548780%
|
|
December
25, 2007
|
January
25, 2008
|
5,490,000.00
|
5.310160%
|
|
January
25, 2008
|
February
25, 2008
|
5,490,000.00
|
5.310220%
|
|
February
25, 2008
|
March
25, 2008
|
5,490,000.00
|
5.804080%
|
|
March
25, 2008
|
April
25, 2008
|
5,490,000.00
|
5.310330%
|
|
April
25, 2008
|
May
25, 2008
|
5,490,000.00
|
5.549060%
|
|
May
25, 2008
|
June
25, 2008
|
5,490,000.00
|
5.310440%
|
|
June
25, 2008
|
July
25, 2008
|
5,490,000.00
|
5.549180%
|
|
July
25, 2008
|
August
25, 2008
|
5,490,000.00
|
5.310550%
|
|
August
25, 2008
|
September
25, 2008
|
5,490,000.00
|
5.310610%
|
|
September
25, 2008
|
October
25, 2008
|
5,490,000.00
|
5.549360%
|
|
October
25, 2008
|
November
25, 2008
|
5,490,000.00
|
5.310730%
|
|
November
25, 2008
|
December
25, 2008
|
5,490,000.00
|
5.549480%
|
|
December
25, 2008
|
January
25, 2009
|
5,490,000.00
|
5.310840%
|
|
January
25, 2009
|
February
25, 2009
|
5,490,000.00
|
5.310900%
|
|
February
25, 2009
|
March
25, 2009
|
5,490,000.00
|
6.078210%
|
|
March
25, 2009
|
April
25, 2009
|
5,490,000.00
|
5.311020%
|
|
April
25, 2009
|
May
25, 2009
|
5,490,000.00
|
5.549780%
|
|
May
25, 2009
|
June
25, 2009
|
5,490,000.00
|
5.311140%
|
|
June
25, 2009
|
July
25, 2009
|
5,490,000.00
|
5.549910%
|
|
July
25, 2009
|
August
25, 2009
|
5,490,000.00
|
5.311260%
|
|
August
25, 2009
|
September
25, 2009
|
5,490,000.00
|
5.311330%
|
|
September
25, 2009
|
October
25, 2009
|
5,490,000.00
|
5.550100%
|
|
October
25, 2009
|
November
25, 2009
|
5,490,000.00
|
5.311450%
|
|
November
25, 2009
|
December
25, 2009
|
5,490,000.00
|
5.550230%
|
|
December
25, 2009
|
January
25, 2010
|
5,490,000.00
|
5.311580%
|
|
January
25, 2010
|
February
25, 2010
|
5,490,000.00
|
5.311640%
|
|
February
25, 2010
|
March
25, 2010
|
4,623,642.51
|
6.079030%
|
|
March
25, 2010
|
April
25, 2010
|
4,511,635.39
|
5.311770%
|
|
April
25, 2010
|
May
25, 2010
|
4,402,325.02
|
5.550560%
|
|
May
25, 2010
|
June
25, 2010
|
4,295,646.75
|
5.311900%
|
|
June
25, 2010
|
July
25, 2010
|
4,191,537.49
|
5.550700%
|
|
July
25, 2010
|
August
25, 2010
|
4,089,935.64
|
5.312030%
|
|
August
25, 2010
|
September
25, 2010
|
3,990,781.09
|
5.312100%
|
|
September
25, 2010
|
October
25, 2010
|
3,894,015.14
|
5.550900%
|
|
October
25, 2010
|
November
25, 2010
|
3,799,580.53
|
5.312230%
|
|
November
25, 2010
|
December
25, 2010
|
3,707,421.33
|
5.551040%
|
|
December
25, 2010
|
January
25, 2011
|
3,617,482.98
|
5.312360%
|
|
January
25, 2011
|
February
25, 2011
|
3,529,712.20
|
5.312430%
|
|
February
25, 2011
|
March
25, 2011
|
3,444,057.00
|
6.079910%
|
|
March
25, 2011
|
April
25, 2011
|
3,360,466.63
|
5.312570%
|
|
April
25, 2011
|
May
25, 2011
|
3,278,891.53
|
5.551400%
|
|
May
25, 2011
|
June
25, 2011
|
3,199,283.37
|
5.312710%
|
|
June
25, 2011
|
July
25, 2011
|
3,121,594.94
|
5.551540%
|
|
July
25, 2011
|
August
25, 2011
|
3,045,780.17
|
5.312850%
|
|
August
25, 2011
|
September
25, 2011
|
2,971,794.09
|
5.312920%
|
|
September
25, 2011
|
October
25, 2011
|
2,899,560.43
|
5.551760%
|
|
October
25, 2011
|
November
25, 2011
|
2,829,035.04
|
5.313060%
|
|
November
25, 2011
|
December
25, 2011
|
2,760,212.51
|
5.551910%
|
|
December
25, 2011
|
January
25, 2012
|
2,693,051.94
|
5.313210%
|
|
January
25, 2012
|
February
25, 2012
|
2,627,513.40
|
5.313280%
|
|
February
25, 2012
|
March
25, 2012
|
2,563,557.94
|
5.807380%
|
|
March
25, 2012
|
April
25, 2012
|
2,501,147.50
|
5.313420%
|
|
April
25, 2012
|
May
25, 2012
|
2,440,244.97
|
5.552280%
|
|
May
25, 2012
|
June
25, 2012
|
2,380,814.11
|
5.313570%
|
|
June
25, 2012
|
July
25, 2012
|
2,322,819.54
|
5.552430%
|
|
July
25, 2012
|
August
25, 2012
|
2,266,226.76
|
5.313720%
|
|
August
25, 2012
|
September
25, 2012
|
2,211,002.05
|
5.313800%
|
|
September
25, 2012
|
October
25, 2012
|
2,157,112.53
|
5.552670%
|
|
October
25, 2012
|
November
25, 2012
|
2,104,526.11
|
5.313950%
|
|
November
25, 2012
|
December
25, 2012
|
2,053,211.44
|
5.552830%
|
|
December
25, 2012
|
January
25, 2013
|
2,003,137.94
|
5.314100%
|
|
January
25, 2013
|
February
25, 2013
|
1,954,275.76
|
5.314180%
|
|
February
25, 2013
|
March
25, 2013
|
1,906,595.77
|
6.081860%
|
|
March
25, 2013
|
April
25, 2013
|
1,860,069.53
|
5.314340%
|
|
April
25, 2013
|
May
25, 2013
|
1,814,669.29
|
5.553230%
|
|
May
25, 2013
|
June
25, 2013
|
1,770,367.95
|
5.314490%
|
|
June
25, 2013
|
July
25, 2013
|
1,727,139.06
|
5.553390%
|
|
July
25, 2013
|
August
25, 2013
|
1,684,956.83
|
5.314660%
|
|
August
25, 2013
|
September
25, 2013
|
1,643,796.07
|
5.314740%
|
|
September
25, 2013
|
October
25, 2013
|
1,603,632.17
|
5.553650%
|
|
October
25, 2013
|
November
25, 2013
|
1,564,441.16
|
5.314900%
|
|
November
25, 2013
|
December
25, 2013
|
1,526,199.60
|
5.553820%
|
|
December
25, 2013
|
January
25, 2014
|
1,488,884.64
|
5.315070%
|
|
January
25, 2014
|
February
25, 2014
|
1,452,473.96
|
5.315150%
|
|
February
25, 2014
|
March
25, 2014
|
1,410,312.36
|
6.082940%
|
|
March
25, 2014
|
April
25, 2014
|
1,339,644.11
|
5.315320%
|
|
April
25, 2014
|
May
25, 2014
|
1,270,689.21
|
5.554250%
|
|
May
25, 2014
|
June
25, 2014
|
1,203,406.40
|
5.315490%
|
|
June
25, 2014
|
July
25, 2014
|
1,137,755.39
|
5.554430%
|
|
July
25, 2014
|
August
25, 2014
|
1,073,696.85
|
5.315670%
|
|
August
25, 2014
|
September
25, 2014
|
1,011,192.42
|
5.315750%
|
|
September
25, 2014
|
October
25, 2014
|
950,204.63
|
5.554700%
|
|
October
25, 2014
|
November
25, 2014
|
890,696.93
|
5.315930%
|
|
November
25, 2014
|
December
25, 2014
|
832,633.63
|
5.554890%
|
|
December
25, 2014
|
The
Termination Date
|
775,979.91
|
5.316110%
|
Annex
A
Paragraph
13 of the Credit Support Annex
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Fax:
(000) 000-0000
|
DATE:
|
January
31, 2007
|
|
TO:
|
HSBC
Bank USA, National Association, not individually, but solely
as Trustee
with respect to the Nomura Home Equity Loan, Inc., Home Equity
Loan Trust,
Series 2007-1
|
|
ATTENTION:
|
HSBC
Bank USA, National Association
|
|
000
0xx
Xxx.
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
FACSIMILE:
|
000-000-0000
|
|
with
a copy to:
|
|
|
ATTENTION:
|
Xxxxx
Fargo Bank, N.A.
|
|
0000
Xxx Xxxxxxxxx Xxxx
|
|
|
Xxxxxxxx,
XX 00000
|
|
|
Attn:
Client Manager, NHEL 2007-1
|
|
|
FACSIMILE:
|
000-000-0000
|
|
FROM:
|
HSBC
Bank USA, National Association
|
|
TELEPHONE :
|
000-000-0000
|
|
FACSIMILE:
|
000-000-0000
|
|
SUBJECT:
|
Fixed
Income Derivatives Confirmation
|
|
REFERENCE
NUMBER:
|
453818HN/453819HN
|
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
HSBC Bank USA, National Association (“Party
A”) and
HSBC
Bank USA, National Association, not individually, but solely as trustee
of the
trust (the “Trust”)
with
respect to the Nomura Home Equity Loan, Inc., Home Equity Loan Trust,
Series
2007-1 (“Party
B”)
created
under the Pooling and Servicing Agreement, dated as of January 1, 2007,
among
Nomura Home Equity Loan, Inc., as depositor (the “Depositor”),
Nomura Credit & Capital, Inc., as sponsor (the “Sponsor”),
Xxxxx
Fargo Bank, N.A., as master servicer (the “Master
Servicer”)
and
securities administrator (the “Securities
Administrator”),
GMAC
Mortgage, LLC as servicer (the “Servicer”)
and
HSBC Bank USA, National Association, not in its individual capacity,
but solely
as trustee (the “Trustee”) (the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and
us to
enter into the Transaction on the terms set forth below and replaces
any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit
Support
Annex to the Schedule.
| 1. |
This
Confirmation shall supplement, form a part of, and be subject
to an
agreement in the form of the ISDA Master Agreement (Multicurrency
- Cross
Border) as published and copyrighted in 1992 by the International
Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such
form on the
date hereof, with a Schedule as set forth in Item 3 of this
Confirmation,
and an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject
to New York Law Only version) as published and copyrighted
in 1994 by the
International Swaps and Derivatives Association, Inc., with
Paragraph 13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein
shall be the
sole Transaction governed by such ISDA Master Agreement. In
the event of
any inconsistency among any of the following documents, the
relevant
document first listed shall govern: (i) this Confirmation,
exclusive of
the provisions set forth in Item 3 hereof and Annex A hereto;
(ii) the
provisions set forth in Item 3 hereof; (iii) the Credit Support
Annex;
(iv) the Definitions; and (v) the ISDA Master
Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference
herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
|
2.
|
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
|
Type
of Transaction:
|
Interest
Rate Cap
|
|
Notional
Amount:
|
With
respect to any Calculation Period the lesser of:
|
|
(i)The
Calculation Amount set forth for such period in Schedule I,
which is
attached hereto and incorporated by reference into this Confirmation,
and
|
|
|
(ii)
The
aggregate Certificate Principal Balance of the Class I-A-4
Certificates
immediately preceding the Distribution Date which occurs in
the calendar
month of the Floating Rate Payer Payment Date for such Calculation
Period
(determined for this purpose without regard to any adjustment
of the
Floating Rate Payer Payment Date or Distribution Date relating
to business
days).
|
|
|
Trade
Date:
|
January
25, 2007
|
|
Effective
Date:
|
January
31, 2007
|
|
Termination
Date:
|
January
25, 2015, subject to adjustment in accordance with the Following
Business
Day Convention.
|
|
Fixed
Amount:
|
As
per side agreement
|
|
Party
A Floating Amounts:
|
|
|
Party
A
|
|
|
Period
End Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
February 25, 2007, and ending on the Termination Date, subject
to
adjustment in accordance with the Following Business Day
Convention.
|
|
Floating
Rate Payer
|
|
|
Payment
Dates:
|
Early
Payment - Two Business Days preceding the 25th
calendar day of each month during the Term of this Transaction,
commencing
February 25, 2007, and ending on the Termination Date
|
|
Cap
Rate:
|
As
set forth in Schedule I
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA;
provided, however, that if the Floating Rate Option for any
Calculation
Period is greater than 10.100000%, then the Floating Rate Option
for such
Calculation Period shall be deemed to be 10.100000%.
|
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day
|
|
|
Count
Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York
|
|
Business
Day Convention:
|
Following
|
|
Calculation
Agent:
|
Party
A
|
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party
means
that upon the occurrence of such an Event of Default with respect to
such party,
the other party shall have the rights of a Non-defaulting Party under
Section 6
of this Agreement; conversely, the statement below that such event will
not
apply to a specific party means that the other party shall not have such
rights.
| (i) |
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will
apply to
Party B; provided, however, that Section 5(a)(i) is hereby
amended by
replacing the word “third” with the word “first”; provided, further, that
notwithstanding anything to the contrary in Section 5(a)(i),
any failure
by Party A to comply with or perform any obligation to be complied
with or
performed by Party A under the Credit Support Annex shall not
constitute
an Event of Default under Section 5(a)(i) unless (A) a Required
Ratings
Downgrade Event has occurred and been continuing for 30 or
more Local
Business Days, and (B) such failure is not remedied on or before
the third
Local Business Day after notice of such failure is given to
Party
A.
|
| (ii) |
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will
not apply to
Party B.
|
| (iii) |
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided, however, that notwithstanding anything
to the
contrary in Section 5(a)(iii)(1), any failure by Party A to
comply with or
perform any obligation to be complied with or performed by
Party A under
the Credit Support Annex shall not constitute an Event of Default
under
Section 5(a)(iii) unless (A) a Required Ratings Downgrade Event
has
occurred and been continuing for 30 or more Local Business
Days, and (B)
such failure is not remedied on or before the third Local Business
Day
after notice of such failure is given to Party
A.
|
| (iv) |
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will
not apply to
Party B.
|
| (v) |
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will
not apply to
Party B.
|
| (vi) |
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will
not apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14 , except that such
term shall not include obligations in respect of deposits received in
the
ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the Shareholders’ Equity of Party A (as set forth in Party A’s Call Report) or,
if applicable, the Eligible Guarantor.
“Shareholders’
Equity” means with respect to an entity, at any time, the sum (as shown in the
most recent annual audited financial statements of such entity) of (i)
its
capital stock (including preferred stock) outstanding, taken at par value,
(ii)
its capital surplus and (iii) its retained earnings, minus (iv) treasury
stock,
each to be determined in accordance with generally accepted accounting
principles.
| (vii) |
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2),
(6) (to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not
apply to Party
B; provided that, with respect to Party B only, Section 5(a)(vii)(4)
is
hereby amended by adding after the words “against it” the words
“(excluding any proceeding or petition instituted or presented
by Party A
or its Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by
deleting the words “to (7) inclusive” and inserting lieu thereof “, (3),
(4) as amended, (5), (6) as amended, or
(7)”.
|
| (viii) |
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and
will not apply
to Party B.
|
(d)
Termination
Events.
The
statement below that a Termination Event will apply to a specific party
means
that upon the occurrence of such a Termination Event, if such specific
party is
the Affected Party with respect to a Tax Event, the Burdened Party with
respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected
Party
with respect to a Credit Event Upon Merger, as the case may be, such
specific
party shall have the right to designate an Early Termination Date in
accordance
with Section 6 of this Agreement; conversely, the statement below that
such an
event will not apply to a specific party means that such party shall
not have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have
the
right to designate an Early Termination Date in accordance with Section
6 of
this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to
Party
B.
|
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except
that, for
purposes of the application of Section 5(b)(ii) to Party A,
Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent jurisdiction,
on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to a party
to this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
|
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided that Party A shall not be entitled to designate
an Early
Termination Date by reason of a Tax Event upon Merger in respect
of which
it is the Affected Party.
|
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and
will not
apply to Party B.
|
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will
not apply to
Party B.
|
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
| (i) |
Market
Quotation will apply, provided, however, that, in the event
of a
Derivative Provider Trigger Event, the following provisions
will
apply:
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted
in its
entirety and replaced with the
following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, a Firm Offer which
is (1)
made by a Reference Market-maker that is an Eligible Replacement, (2)
for an
amount that would be paid to Party B (expressed as a negative number)
or by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect
of the
Terminated Transaction or group of Transactions are to be excluded but,
without
limitation, any payment or delivery that would, but for the relevant
Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included.
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined
by Party B)
equal to:
|
(a)
|
If
a Market Quotation for the relevant Terminated Transaction
or group of
Terminated Transactions is accepted by Party B so as to become
legally
binding on or before the day falling ten Local Business Days
after the day
on which the Early Termination Date is designated, or such
later day as
Party B may specify in writing to Party A, but in either case
no later
than one Local Business Day prior to the Early Termination
Date (such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
(b)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated
Transactions
has been accepted by Party B so as to become legally binding
and one or
more Market Quotations from
Approved Replacements have
been made and remain capable of becoming legally binding upon
acceptance,
the Settlement Amount shall equal the Termination Currency
Equivalent of
the amount (whether positive or negative) of the lowest of
such Market
Quotations (for the avoidance of doubt, the lowest of such
Market
Quotations shall be the lowest Market Quotation of
such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed
as a
negative number with the largest absolute value);
or
|
|
(c)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated
Transactions is
accepted by Party B so as to become legally binding and no
Market
Quotation from an Approved Replacement remains capable of becoming
legally
binding upon acceptance, the Settlement Amount shall equal
Party B’s Loss
(whether positive or negative and without reference to any
Unpaid Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest
Settlement
Amount Determination Day.
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect
of the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III)
Party A
shall pay to Party B the Termination Currency Equivalent of the Unpaid
Amounts
owing to Party B; provided, however, that (x) the amounts payable under
the
immediately preceding clauses (II) and (III) shall be subject to netting
in
accordance with Section 2(c) of this Agreement and (y) notwithstanding
any other
provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted-off against any amount payable
by
Party B under the immediately preceding clause (I).”
|
(E)
|
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations from Approved Replacements
remain
capable of becoming legally binding upon acceptance, Party
B shall be
entitled to accept only the lowest of such Market Quotations
(for the
avoidance of doubt, the lowest of such Market Quotations shall
be the
lowest Market Quotation of such Market Quotations expressed
as a positive
number or, if any of such Market Quotations is expressed as
a negative
number, the Market Quotation expressed as a negative number
with the
largest absolute value).
|
| (ii) |
The
Second Method will apply.
|
(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
|
(i)
|
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
|
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make
any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement)
to be made
by it to the other party under this Agreement. In making this representation,
it
may rely on: (i) the accuracy of any representations made by the other
party
pursuant to Section 3(f) of this Agreement; (ii) the satisfaction of
the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement
and the
accuracy and effectiveness of any document provided by the other party
pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where reliance
is
placed on clause (ii) and the other party does not deliver a form or
document
under Section 4(a)(iii) by reason of material prejudice to its legal
or
commercial position.
(B)
Party
B
makes the following representation(s):
None.
(ii)
Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
Party
A
is a national banking association organized under the federal laws of
the United
States and its U.S. taxpayer identification number is 00-0000000.
(B)
Party
B
makes the following representation(s):
None.
|
(b)
|
Tax
Provisions.
|
|
(i)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party
B shall not
be required to pay any additional amounts referred to
therein.
|
|
(ii)
|
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
|
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
Part
3. Agreement
to Deliver Documents.
(a)
For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to
be
delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
|
Party
A
|
A
correct, complete and duly executed U.S. Internal Revenue Service
Form W-9
or other applicable form (or successor thereto), together with
appropriate
attachments, that eliminates U.S. federal withholding and backup
withholding Tax on payments to Party A under this
Agreement.
|
(i)
upon execution of this Agreement, (ii) on or before the first
payment date
under this Agreement, including any Credit Support Document,
(iii)
promptly upon the reasonable demand by Party B, (iv) prior
to the
expiration or obsolescence of any previously delivered form,
and (v)
promptly upon the information on any such previously delivered form
becoming inaccurate or incorrect
|
|
|
Party
B
|
Party
B will deliver at closing a correct, complete and duly executed
U.S.
Internal Revenue Service Form W-9 or other applicable form
(or successor
thereto), together with appropriate attachments, and may deliver
other
tax forms
relating to the beneficial owner of payments to Party B under
this
Agreement from time to time
|
(i)
upon execution of this Agreement, (ii) on or before the first
payment date
under this Agreement, including any Credit Support Document,
(iii)
promptly upon the reasonable demand by Party A, (iv) prior
to the
expiration or obsolescence of any previously delivered form,
and (v)
promptly upon the information on any such previously delivered form
becoming inaccurate or incorrect
|
(b) For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for
it to execute
and deliver the Agreement, this Confirmation, and any Credit
Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform
its obligations
under the Agreement, this Confirmation and any Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the
incumbency
and authority of the respective officers of the party signing
the
Agreement, this Confirmation, and any relevant Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
|
Party
A
|
Annual
Financial Statements as set forth in Party A’s Call Report containing
consolidated financial statements certified by independent
certified
public accountants and prepared in accordance with generally
accepted
accounting principles in the country in which Party A is
organized
|
Promptly
upon request made by Party B
|
Yes
|
|
|
Party
A
|
Quarterly
Financial Statements as set forth in Party A’s Call Report containing
unaudited, consolidated financial statements of Party A’s fiscal quarter
prepared in accordance with generally accepted accounting principles
in
the country in which Party A is organized
|
Promptly
upon request made by Party B
|
Yes
|
|
|
Party
A
|
An
opinion of counsel to Party A satisfactory in form and substance
to Party
B
|
Upon
the execution and delivery of this Agreement
|
No
|
Part
4. Miscellaneous.
|
(a)
|
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
|
Address
for notices or communications to Party A:
|
Address:
|
000
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
|
|
Attention:
|
Xxxxxxxxx
XxXxxxxx
|
|
Facsimile:
|
000-000-0000
|
|
Telephone:
|
000-000-0000
|
Please
direct all settlement inquiries to:
HSBC
Bank USA, National Association
Derivative
Settlements
|
Attention:
|
Xxxxxxx
Xxxxxxx
|
|
Telephone:
|
(000)
000-0000
|
|
Fax:
|
(000)
000-0000
|
(For
all
purposes)
Address
for notices or communications to Party B:
|
Attention:
|
HSBC
Bank USA, National Association
|
|
000
0xx
Xxx.
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Facsimile:
|
000-000-0000
|
|
with
a copy to:
|
|
|
Attention:
|
Xxxxx
Fargo Bank, N.A.
|
|
0000
Xxx Xxxxxxxxx Xxxx
|
|
|
Xxxxxxxx,
XX 00000
|
|
|
Attn:
Client Manager, NHEL 2007-1
|
|
|
Facsimile:
|
|
|
(For
all purposes)
|
|
(b)
Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this Agreement;
neither
Party A nor Party B has any Offices other than as set forth
in the Notices
Section and Party A agrees that, for purposes of Section 6(b)
of this
Agreement, it shall not in the future have any Office other
than one in
the United States.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A; provided, however, that if
an Event of
Default shall have occurred with respect to Party A, Party
B shall have
the right to appoint as Calculation Agent a third party, reasonably
acceptable to Party A, the cost for which shall be borne by
Party
A.
|
(f) Credit
Support Document.
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party
A’s
obligations under this Agreement.
|
|
Party
B:
|
The
Credit Support Annex, solely in respect of Party B’s obligations under
Paragraph 3(b) of the Credit Support
Annex.
|
|
(g)
|
Credit
Support Provider.
|
|
Party
A:
|
The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
|
|
Party
B:
|
None.
|
|
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of
the State of
New York shall govern their rights and duties in whole, without
regard to
the conflict of law provisions thereof other than New York
General
Obligations Law Sections 5-1401 and 5-1402.
|
|
(i)
|
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will
apply to
each Transaction hereunder.
|
|
(j)
|
Affiliate.“Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party A and Party B shall be deemed to have no Affiliates
for
purposes of this Agreement, including for purposes of Section
6(b)(ii).
|
Part
5. Others
Provisions.
|
(a)
|
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions
as published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the
Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to
a “Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this
Agreement shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
|
(b)
Amendments
to ISDA Master Agreement.
|
(i)
|
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
|
(ii)
Conditions
Precedent. Section
2(a)(iii) is hereby amended by adding the following at the end thereof:
Notwithstanding
anything to the contrary in Section 2(a)(iii)(1), if an Event of Default
with
respect to Party B or Potential Event of Default with respect to Party
B has
occurred and been continuing for more than 30 Local Business Days and
no Early
Termination Date in respect of the Affected Transactions has occurred
or been
effectively designated by Party A, the obligations of Party A under Section
2(a)(i) shall cease to be subject to the condition precedent set forth
in
Section 2(a)(iii)(1) with respect to such specific occurrence of such
Event of
Default or such Potential Event of Default (the “Specific
Event”);
provided, however, for the avoidance of doubt, the obligations of Party
A under
Section 2(a)(i) shall be subject to the condition precedent set forth
in Section
2(a)(iii)(1) (subject to the foregoing) with respect to any subsequent
occurrence of the same Event of Default with respect to Party B or Potential
Event of Default with respect to Party B after the Specific Event has
ceased to
be continuing and with respect to any occurrence of any other Event of
Default
with respect to Party B or Potential Event of Default with respect to
Party B
that occurs subsequent to the Specific Event.
|
(iii)
|
Change
of Account.
Section 2(b) is hereby amended by the addition of the following
after the
word “delivery” in the first line
thereof:
|
“to
another account in the same legal and tax jurisdiction as the original
account”.
|
(iv)
|
Representations.
Section 3 is hereby amended by adding at the end thereof the
following
subsection (g):
|
|
“(g)
|
Relationship
Between Parties.
|
|
(1)
|
Nonreliance.
(i) It is not relying on any statement or representation of
the other
party regarding the Transaction (whether written or oral),
other than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with
its own legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its
own investment,
hedging and trading decisions based upon its own judgment and
upon any
advice from such advisors as it has deemed necessary and not
upon any view
expressed by the other party.
|
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and
has made its
own decision to enter into the Transaction and (ii) It understands
the
terms, conditions and risks of the Transaction and is willing
and able to
accept those terms and conditions and to assume those risks,
financially
and otherwise.
|
|
(3)
|
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or
liabilities or
in connection with a line of business.
|
|
(4)
|
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible swap participant” as such term is
defined in, Section 35.1(b)(2) of the regulations (17 C.F.R.
35)
promulgated under, and an “eligible contract participant” as defined in
Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
|
|
(v)
|
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words
“or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) by deleting the words “to transfer” and inserting the words “to
effect a Permitted Transfer” in lieu
thereof.
|
|
(vi)
|
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line
of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph (i) and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
|
|
(vii)
|
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby
amended by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events.
The following Additional Termination Events will
apply:
|
| (i) |
First
Rating Trigger Collateral.
If
(A) it is not the case that a Moody’s Second Trigger Ratings Event has
occurred and been continuing for 30 or more Local Business
Days and (B)
Party
A has failed to comply with or perform any obligation to be
complied with
or performed by Party A in accordance with the Credit Support
Annex, then
an Additional Termination Event shall have occurred with respect
to Party
A and Party A shall be the sole Affected Party with respect
to such
Additional Termination Event.
|
| (ii) |
Second
Rating Trigger Replacement.
If
(A) a Required Ratings Downgrade Event has occurred and been
continuing
for 30 or more Local Business Days and (B) (i) at least one
Eligible
Replacement has made a Firm Offer to be the transferee of all
of Party A’s
rights and obligations under this Agreement (and such Firm
Offer remains
an offer that will become legally binding upon such Eligible
Replacement
upon acceptance by the offeree) and/or (ii) an Eligible Guarantor
has made
a Firm Offer to provide an Eligible Guarantee (and such Firm
Offer remains
an offer that will become legally binding upon such Eligible
Guarantor
immediately upon acceptance by the offeree), then an Additional
Termination Event shall have occurred with respect to Party
A and Party A
shall be the sole Affected Party with respect to such Additional
Termination Event.
|
| (iii) |
Optional
Termination of Securitization.
An
Additional Termination Event shall occur upon the notice to
Certificateholders of an optional termination becoming unrescindable
in
accordance with Article x of the Pooling and Servicing Agreement,
Party B
shall be the sole Affected Party with respect to such Additional
Termination Event; provided, however that notwithstanding anything
to the
contrary in Section 6(b)(iv), only Party B may designate an
Early
Termination Date in respect of this Additional Termination
Event.
|
| (iv) |
Information
Required by Regulation AB. If
Party A fails to comply with the provisions of Part 5(e) upon
the
occurrence of a Swap Disclosure Event, then an Additional Termination
Event shall have occurred with respect to party A and Party
A shall be the
sole Affected Party with respect to such Additional Termination
Event.
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|
(d)
|
Required
Ratings Downgrade Event.
In
the event that no Relevant Entity has credit ratings at least
equal to the
Required Ratings Threshold (such event, a “Required
Ratings Downgrade Event”),
then Party A shall, as soon as reasonably practicable and so
long as a
Required Ratings Downgrade Event is in effect, at its own expense,
using
commercially reasonable efforts, procure either (A) a Permitted
Transfer
or (B) an Eligible Guarantee.
|
(e)
Compliance
with Regulation AB. (i)
For
purposes of Item 1115 of Subpart 229.1100 - Asset Backed Securities (Regulation
AB) (17 C.F.R. ss.ss.229.1100 - 229.1123) (“Regulation AB”) under the Securities
Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended
(the “Exchange Act”), as amended and interpreted by the Securities and Exchange
Commission and its staff, if the Depositor or Party B makes a determination,
acting reasonably and in good faith, that (x) the applicable “significance
percentage” with respect to this Agreement has been reached, and (y) it has a
reporting obligation under the Exchange Act (a “Swap Disclosure Event”), then
Party A shall (or shall cause its Credit Support Provider to), within
ten (10)
calendar days after notice to that effect, at its sole expense, take
one of the
following actions (each subject to satisfaction of the Rating Agency
Condition):
(1) provide (including, if permitted by Regulation AB, provision by reference
to
reports filed pursuant to the Exchange Act or otherwise publicly available
information): (A) the financial data required by Item 301 of Regulation
S-K (17
C.F.R. §229.301), pursuant to Item 1115(b)(1); (B) financial statements meeting
the requirements of Regulation S-X (17 C.F.R. §§210.1-01 through 210.12-29, but
excluding 17 C.F.R. ss. 210.3-05 and Article 11 of Regulation S-X (17
C.F.R. ss.
ss. 210.11-01 through 210.11-03)), pursuant to Item 1115(b)(2); or (C)
such
other financial information as may at the time be required or permitted
to be
provided in satisfaction of the requirements of Item 1115(b), together
with
accountants consents and/or a procedure letter relating thereto; or (2)
secure
an Approved Replacement that is able to comply with the requirements
of Item
1115(b) of Regulation AB to replace Party A as party to this Agreement,
on
substantially similar terms, the debt rating of which entity (or credit
support
provider therefor) meets or exceeds the applicable requirements of the
applicable Rating Agencies.
(ii)
For
so long as the aggregate significance percentage is 10% or more, Party
A shall
(or shall cause its Credit Support Provider to) provide any updates to
the
information provided pursuant to clause (i)(1) above to the Depositor
within
five (5) Business Days following availability thereof (but in no event
more than
45 days after the end of each of Party A’s Credit Support Provider’s fiscal half
for any half-year update, and in no event more than 90 days after the
end of
each of Party A’s Credit Support Provider’s fiscal year for any annual
update).
(iii)
All
information provided pursuant to clauses (i)(1) and (ii) above (all such
information, “Swap Financial Disclosure”) shall be in a form suitable for
conversion to the format required for filing by the Depositor with the
Commission via the Electronic Data Gathering and Retrieval System (XXXXX).
In
addition, any such information, if audited, shall be accompanied by any
necessary auditor’s consents or, if such information is unaudited, shall be
accompanied by an appropriate agreed-upon procedures letter from Party
A’s
accountants. If permitted by Regulation AB, any such information may
be provided
by reference to or incorporation by reference from reports filed pursuant
to the
Exchange Act.
(iv)
Party A agrees that, in the event that Party A provides Swap Financial
Disclosure to Depositor in accordance with paragraph (iii) above or causes
its
Credit Support Provider to provide Swap Financial Disclosure to Depositor
in
accordance with paragraph (iii) above, it will indemnify and hold harmless
Depositor, its respective directors or officers and any person controlling
Depositor, from and against any and all losses, claims, damages and liabilities
(any “Damage”) caused by any untrue statement or alleged untrue statement of a
material fact contained in such Swap Financial Disclosure or caused by
any
omission or alleged omission to state in such Swap Financial Disclosure
a
material fact required to be stated therein or necessary to make the
statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however that the foregoing shall not apply to any
Damage
caused by the negligence or any willful action of Depositor or any other
party
(other than Party A or any of its affiliates or any of their respective
agents),
including without limitation any failure to calculate the Significance
Percentage according to the terms of this Agreement or to make any filing
as and
when required under Regulation AB.
(v)
Third
Party Beneficiary. The Depositor shall be an express third party beneficiary
of
this Agreement as if a party hereto to the extent of the Depositor’s rights
explicitly specified in this Part 5(e).
|
(f)
|
Transfers.
|
(i)
Section
7
is hereby amended to read in its entirety as follows:
“Except
with respect to any Permitted Transfer pursuant to Section 6(b)(ii),
Part 5(d),
or the succeeding sentence, neither Party A nor Party B is permitted
to assign,
novate or transfer (whether by way of security or otherwise) as a whole
or in
part any of its rights, obligations or interests under the Agreement
or any
Transaction unless (a) the prior written consent of the other party is
obtained,
and (b) the Rating Agency Condition has been satisfied with respect to
S&P.
At any time at which no Relevant Entity has credit ratings at least equal
to the
Approved Ratings Threshold, Party A may make a Permitted Transfer.”
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains
an offer that
will become legally binding upon acceptance by Party B) to
be the
transferee pursuant to a Permitted Transfer, Party B shall,
at Party A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such transfer.
|
|
(g)
|
Non-Recourse.
Party A acknowledges and agree that, notwithstanding any provision
in this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely , in
accordance
with the priority of payments and other terms of the Pooling
and Servicing
Agreement and that Party A will not have any recourse to any
of the
directors, officers, employees, shareholders or affiliates
of the Party B
with respect to any claims, losses, damages, liabilities, indemnities
or
other obligations in connection with any transactions contemplated
hereby.
This provision will survive the termination of this
Agreement.
|
|
(h)
|
Limitation
on Events of Default.
Notwithstanding the provisions of Sections 5 and 6, if at any
time and so
long as Party B has satisfied in full all its payment obligations
under
Section 2(a)(i) and has at the time no future payment obligations,
whether
absolute or contingent, under such Section, then unless Party
A is
required pursuant to appropriate proceedings to return to Party
B or
otherwise returns to Party B upon demand of Party B any portion
of any
such payment, (a) the occurrence of an event described in Section
5(a)
with respect to Party B shall
not constitute an Event of Default or Potential
Event of Default with respect to Party B as Defaulting Party
and (b) Party
A shall be entitled to designate an Early Termination Date
pursuant to
Section 6 only as a result of the occurrence of a Termination
Event set
forth in either Section 5(b)(i) or 5(b)(ii) with respect to
Party A as the
Affected Party, or Section 5(b)(iii) with respect to Party
A as the
Burdened Party. For purposes of the Transaction to which this
Agreement
relates, Party B’s only obligation under Section 2(a)(i) is to pay the
Fixed Amount on the Fixed Amount Payer Payment
Date
|
|
(i)
|
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination
Date shall be
effectively designated hereunder by Party B and no transfer
of any rights
or obligations under this Agreement shall be made by either
party unless
each Cap Rating Agency has been given prior written notice
of such
designation or transfer.
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|
(j)
|
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6
or Part
1(f)(i)(D) hereof, and notwithstanding any other provision
of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off,
net, recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination
Date and
determined pursuant to this Section will be subject to any
Set-off.”
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|
(k)
|
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under
this Agreement
shall be permitted by either party unless each of the Cap Agencies
has
been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to
S&P.
|
|
(l)
|
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving
of notice or
passage of time or both would constitute) an Event of Default
or
Termination Event with respect to such party, promptly to give
the other
Party and to each Cap Rating Agency notice of such event or
condition;
provided that failure to provide notice of such event or condition
pursuant to this Part 5(l) shall not constitute an Event of
Default or a
Termination Event.
|
(m)
Proceedings.
No
Relevant Entity shall institute against, or cause any other person to
institute
against, or join any other person in instituting against Party B or the
trust
created pursuant to the Pooling and Servicing Agreement, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or
other
proceedings under any federal or state bankruptcy or similar law for
a period of
one year (or, if longer, the applicable preference period) and one day
following
payment in full of the Certificates and any Notes. This provision will
survive
the termination of this Agreement.
|
(n)
|
Trustee
Limitation of Liability. It
is expressly understood and agreed by the parties hereto that
(a) this
Agreement is executed and delivered by HSBC Bank USA, National
Association, not individually or personally but solely as the
Trustee, in
the exercise of the powers and authority conferred and vested
in it under
the Pooling and Servicing Agreement, (b) the representations,
warranties,
covenants, undertakings and agreements herein made on the part
of the
trust created pursuant to the Pooling and Servicing Agreement
(the
“Trust”) are made and intended not as personal representations,
undertakings and agreements by HSBC Bank USA, National Association
but are
made and intended for the purpose of binding only the, (c)
nothing herein
contained shall be construed as creating any liability on HSBC
Bank USA,
National Association, individually or personally, to perform
any covenant
either expressed or implied contained herein, all such liability,
if any,
being expressly waived by the parties who are signatories to
this
Agreement and by any person claiming by, through or under such
parties and
(d) under no circumstances shall HSBC Bank USA, National Association
be
personally liable for the payment of any indemnity, indebtedness,
fees or
expenses of the Trust or be liable for the breach or failure
of any
obligation, representation, warranty or covenant made or undertaken
by the
Trust under this Agreement.
|
|
(o)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be
held to be
invalid or unenforceable (in whole or in part) in any respect,
the
remaining terms, provisions, covenants, and conditions hereof
shall
continue in full force and effect as if this Agreement had
been executed
with the invalid or unenforceable portion eliminated, so long
as this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations
of the
parties; provided, however, that this severability provision
shall not be
applicable if any provision of Section 2, 5, 6, or 13 (or any
definition
or provision in Section 14 to the extent it relates to, or
is used in or
in connection with any such Section) shall be so held to be
invalid or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace
any
invalid or unenforceable term, provision, covenant or condition with
a valid or
enforceable term, provision, covenant or condition, the economic effect
of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Agent
for Party B. Party
A acknowledges that the Securities Administrator has been appointed
as
agent under the Pooling and Servicing Agreement to carry out
certain
functions on behalf of Party B, and that the Securities Administrator
shall be entitled to give notices and to perform and satisfy
the
obligations of Party B hereunder on behalf of Party
B.
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|
(q)
|
Escrow
Payments.
If
(whether by reason of the time difference between the cities
in which
payments are to be made or otherwise) it is not possible for
simultaneous
payments to be made on any date on which both parties are required
to make
payments hereunder, either Party may at its option and in its
sole
discretion notify the other Party that payments on that date
are to be
made in escrow. In this case deposit of the payment due earlier
on that
date shall be made by 2:00 pm (local time at the place for
the earlier
payment) on that date with an escrow agent selected by the
notifying
party, accompanied by irrevocable payment instructions (i)
to release the
deposited payment to the intended recipient upon receipt by
the escrow
agent of the required deposit of any corresponding payment
payable by the
other party on the same date accompanied by irrevocable payment
instructions to the same effect or (ii) if the required deposit
of the
corresponding payment is not made on that same date, to return
the payment
deposited to the party that paid it into escrow. The party
that elects to
have payments made in escrow shall pay all costs of the escrow
arrangements.
|
|
(r)
|
Consent
to Recording.
Each party hereto consents to the monitoring or recording,
at any time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the
parties and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
|
|
(s)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury
in respect of
any in respect of any suit, action or proceeding relating to
this
Agreement or any Credit Support Document.
|
|
(t)
|
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the
ISDA Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency -
Crossborder) as published and copyrighted in 1992 by the International
Swaps and Derivatives Association,
Inc.
|
|
(u)
|
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party
A to Party B
under this Agreement shall be paid to the account specified
in Item 4 of
this Confirmation, below.
|
|
(v)
|
Additional
representations.
|
|
(i)
|
Representations
of Party A.
Party A represents to Party B on the date on which Party A
enters into
each Transaction that:--
|
|
(1)
|
Party
A’s obligations under this Agreement rank pari passu with all
of Party A’s
other unsecured, unsubordinated obligations except those obligations
preferred by operation of law.
|
|
(2)
|
Party
A is a bank subject to the requirements of 12 U.S.C. § 1823(e), its
execution, delivery and performance of this Agreement (including
the
Credit Support Annex and each Confirmation) have been approved
by its
board of directors or its loan committee, such approval is
reflected in
the minutes of said board of directors or loan committee, and
this
Agreement (including the Credit Support Annex and each Confirmation)
will
be maintained as one of its official records continuously from
the time of
its execution (or in the case of any Confirmation, continuously
until such
time as the relevant Transaction matures and the obligations
therefor are
satisfied in full).
|
|
(ii)
|
Capacity.
Party A represents to Party B on the date on which Party A
enters into
this Agreement that it is entering into the Agreement and the
Transaction
as principal and not as agent of any person. Party B represents
to Party A
on the date on which Party B enters into this Agreement that
it is
entering into the Agreement and the Transaction in its capacity
as
Trustee.
|
|
(w)
|
Acknowledgements.
|
|
(ii)
|
Bankruptcy
Code.
Subject to Part 5(m), without limiting the applicability if
any, of any
other provision of the U.S. Bankruptcy Code as amended (the
“Bankruptcy
Code”) (including without limitation Sections 362, 546, 556, and
560
thereof and the applicable definitions in Section 101 thereof),
the
parties acknowledge and agree that all Transactions entered
into hereunder
will constitute “forward contracts” or “swap agreements” as defined in
Section 101 of the Bankruptcy Code or “commodity contracts” as defined in
Section 761 of the Bankruptcy Code, that the rights of the
parties under
Section 6 of this Agreement will constitute contractual rights
to
liquidate Transactions, that any margin or collateral provided
under any
margin, collateral, security, pledge, or similar agreement
related hereto
will constitute a “margin payment” as defined in Section 101 of the
Bankruptcy Code, and that the parties are entities entitled
to the rights
under, and protections afforded by, Sections 362, 546, 556,
and 560 of the
Bankruptcy Code.
|
| (x) |
[Reserved]
|
| (y) |
Third
Party Beneficiary.
Xxxxx Fargo Bank, N.A. is a third party beneficiary of this
agreement and
is entitled to the rights and benefits hereunder and may enforce
the
provisions hereof as if were a party
hereto.
|
(z)
Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold and the Moody’s First Trigger
Ratings Threshold.
“Approved
Replacement” means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b), (c) and (d) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion,
acting in a
commercially reasonable manner) if such entity were a Transferee, as
defined in
the definition of Permitted Transfer.
“Cap
Rating Agencies”
means,
with respect to any date of determination, each of S&P and
Moody’s,
to the
extent that each such rating agency is then providing a rating for any
of the
Nomura
Home Equity Loan, Inc., Home Equity Loan Trust, Series 2007-2 (the
“Certificates”) or any notes backed by the Certificates (the
“Notes”).
“Derivative
Provider Trigger Event”
means
(i) an Event of Default with respect to which Party A is a Defaulting
Party,
(ii) a Termination Event with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which
Party A is
the sole Affected Party.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of Party
A or
an Eligible Replacement to Party B under this Agreement that is provided
by an
Eligible Guarantor as principal debtor rather than surety and that is
directly
enforceable by Party B, the form and substance of which guarantee are
subject to
the Rating Agency Condition with respect to S&P, and either (A) a law firm
has given a legal opinion confirming that none of the guarantor’s payments to
Party B under such guarantee will be subject to Tax
collected by withholding or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to Tax collected by withholding, such guarantor
is
required to pay such additional amount as is necessary to ensure that
the net
amount actually received by Party B (free and clear of any Tax collected
by
withholding) will equal the full amount Party B would have received had
no such
withholding been required.
“Eligible
Guarantor” means
an
entity that (A) has credit ratings at least equal to the S&P Approved
Ratings Threshold and (B) has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold, provided, for the avoidance of doubt,
that an Eligible Guarantee of an Eligible Guarantor with credit ratings
below
the Moody’s First Trigger Ratings Threshold will not cause a Collateral Event
(as defined in the Credit Support Annex) not to occur or continue with
respect
to Moody’s.
“Eligible
Replacement”
means an
entity (i) (a) that has credit ratings from S&P at least equal to the
S&P Approved Ratings Threshold, and (b) has credit ratings from Moody’s at
least equal to the Moody’s Second Trigger Ratings Threshold, provided, for the
avoidance of doubt, that an Eligible Replacement with credit ratings
below the
Moody’s First Trigger Ratings Threshold will not cause a Collateral Event (as
defined in the Credit Support Annex) not to occur or continue with respect
to
Moody’s, or (ii) the present and future obligations (for the avoidance of doubt,
not limited to payment obligations) of which entity to Party B under
this
Agreement are guaranteed pursuant to an Eligible Guarantee.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or
to Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such
Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A
as the
counterparty to this Agreement or enter a Replacement Transaction that
will
become legally binding upon such Eligible Replacement upon acceptance
by Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or
an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or
counterparty rating from
Moody’s of “A2” and a short-term unsecured and unsubordinated debt rating from
Moody’s of “Prime-1”, or (ii) if such entity does not have a short-term
unsecured and unsubordinated debt rating or counterparty rating from
Moody’s, a
long-term unsecured and unsubordinated debt rating or counterparty rating
from
Moody’s of “A1”.
“Moody’s
Second Trigger Ratings Event”
means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or
an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Xxxxx’x of “A3”.
“Permitted
Transfer” means
a
transfer by novation by Party A pursuant to Section 6(b)(ii), Part 5(d),
or the
second sentence of Section 7 (as amended herein) to a transferee (the
“Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with
respect to which transfer each of the following conditions is
satisfied:
(a) the
Transferee is an Eligible Replacement; (b) Party A and the Transferee
are both
“dealers in notional principal contracts” within the meaning of Treasury
regulations section 1.1001-4; (c) as of the date of such transfer the
Transferee
would not be required to withhold or deduct on account of Tax from any
payments
under this Agreement or would be required to gross up for such Tax under
Section
2(d)(i)(4); (d) an Event of Default or Termination Event would not occur
as a
result of such transfer; (e) pursuant to a written instrument (the “Transfer
Agreement”),
the
Transferee acquires and assumes all rights and obligations of Party A
under the
Agreement and the relevant Transaction; (f) Party B shall have determined,
in
its sole discretion, acting in a commercially reasonable manner, that
such
Transfer Agreement is effective to transfer to the Transferee all, but
not less
than all, of Party A’s rights and obligations under the Agreement and all
relevant Transactions; (g) Party A will be responsible for any costs
or expenses
incurred in connection with such transfer (including any replacement
cost of
entering into a replacement transaction); (h) either (A) Xxxxx’x has been given
prior written notice of such transfer and the Rating Agency Condition
is
satisfied with respect to S&P or (B) each Swap Rating Agency has been given
prior written notice of such transfer and such transfer is in connection
with
the assignment and assumption of this Agreement without modification
of its
terms, other than party names, dates relevant to the effective date of
such
transfer, tax representations (provided that the representations in Part
2(a)(i)
are not modified) and any other representations regarding the status
of the
substitute counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2)
or Part 5(v)(ii), notice information and account details; and such transfer
otherwise complies with the terms of the Pooling and Servicing
Agreement.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Cap Rating Agency specified in connection with such proposed act
or
omission, that the party acting or failing to act must consult with each
of the
specified Cap Rating Agencies and receive from each such Cap Rating Agency
a
prior written confirmation that the proposed action or inaction would
not cause
a downgrade or withdrawal of the then-current rating of any Certificates
or
Notes.
“Relevant
Entity” means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect
of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of
Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are
not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
shall
have the meaning assigned thereto in Part 5(d).
“Required
Ratings Threshold” means
each of the S&P Required Ratings Threshold, and the Xxxxx’x Second Trigger
Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or
an
Eligible Replacement, a short-term unsecured and unsubordinated debt
rating from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or
an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
from
S&P of “BBB+”.
[Remainder
of this page intentionally left blank.]
4. Account
Details and Settlement Information:
|
Payments
to Party A:
|
HSBC
Bank USA, National Association
|
|
ABA
# 000-000-000
|
|
|
For
credit to Department 299
|
|
|
A/C:
000-00000-0
|
|
|
HSBC
Derivative Products Group
|
|
|
Payments
to Party B:
|
Xxxxx
Fargo Bank, N.A.
|
|
ABA
# 000-000-000
|
|
|
For
Credit to: SAS Clearing
|
|
|
A/C:
0000000000
|
|
|
FFC:
NHEL 2007-1 50984501 Net Wac Reserve
Fund
|
This
Agreement may be executed in several counterparts, each of which shall
be deemed
an original but all of which together shall constitute one and the same
instrument.
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
HSBC
BANK
USA, NATIONAL ASSOCIATION
|
By:
|
/s/ Xxxxxxx Xxxxxxxx |
|
Name:
|
Xxxxxxx Xxxxxxxx |
|
Title:
|
Assistant Vice President |
|
By:
|
/s/ Xxxxxxxx Xxxx |
|
Name:
|
Xxxxxxxx Xxxx |
|
Title:
|
Assistant Vice President |
Party
B,
acting through its duly authorized signatory, hereby agrees to, accepts
and
confirms the terms of the foregoing as of the date hereof.
HSBC
BANK
USA, NATIONAL ASSOCIATION, NOT INDIVIDUALLY, BUT SOLELY AS TRUSTEE
WITH RESPECT
TO THE NOMURA HOME EQUITY LOAN, INC., HOME EQUITY LOAN TRUST, SERIES
2007-1
|
By:
|
/s/ Xxxxx Xxxxx |
|
Name:
|
Xxxxx Xxxxx |
|
Title:
|
Vice President |
SCHEDULE
I
(all
such
dates subject to adjustment in accordance with the Following Business
Day
Convention)
|
For
the Calculation Periods
|
Calculation
Amount
|
Cap
Rate
|
|
|
From
and including:
|
To
but excluding:
|
in
USD:
|
|
|
The
Effective Date
|
February
25, 2007
|
111,610,000.00
|
8.478030%
|
|
February
25, 2007
|
March
25, 2007
|
111,610,000.00
|
7.526850%
|
|
March
25, 2007
|
April
25, 2007
|
111,610,000.00
|
6.759770%
|
|
April
25, 2007
|
May
25, 2007
|
111,610,000.00
|
6.998470%
|
|
May
25, 2007
|
June
25, 2007
|
111,610,000.00
|
6.759840%
|
|
June
25, 2007
|
July
25, 2007
|
111,610,000.00
|
6.998540%
|
|
July
25, 2007
|
August
25, 2007
|
111,610,000.00
|
6.759910%
|
|
August
25, 2007
|
September
25, 2007
|
111,610,000.00
|
6.759950%
|
|
September
25, 2007
|
October
25, 2007
|
111,610,000.00
|
6.998660%
|
|
October
25, 2007
|
November
25, 2007
|
111,610,000.00
|
6.760050%
|
|
November
25, 2007
|
December
25, 2007
|
111,610,000.00
|
6.998780%
|
|
December
25, 2007
|
January
25, 2008
|
111,610,000.00
|
6.760160%
|
|
January
25, 2008
|
February
25, 2008
|
111,610,000.00
|
6.760220%
|
|
February
25, 2008
|
March
25, 2008
|
0.00
|
0.000000%
|
|
March
25, 2008
|
April
25, 2008
|
0.00
|
0.000000%
|
|
April
25, 2008
|
May
25, 2008
|
0.00
|
0.000000%
|
|
May
25, 2008
|
June
25, 2008
|
0.00
|
0.000000%
|
|
June
25, 2008
|
July
25, 2008
|
0.00
|
0.000000%
|
|
July
25, 2008
|
August
25, 2008
|
0.00
|
0.000000%
|
|
August
25, 2008
|
September
25, 2008
|
0.00
|
0.000000%
|
|
September
25, 2008
|
October
25, 2008
|
0.00
|
0.000000%
|
|
October
25, 2008
|
November
25, 2008
|
0.00
|
0.000000%
|
|
November
25, 2008
|
December
25, 2008
|
0.00
|
0.000000%
|
|
December
25, 2008
|
January
25, 2009
|
0.00
|
0.000000%
|
|
January
25, 2009
|
February
25, 2009
|
0.00
|
0.000000%
|
|
February
25, 2009
|
March
25, 2009
|
0.00
|
0.000000%
|
|
March
25, 2009
|
April
25, 2009
|
0.00
|
0.000000%
|
|
April
25, 2009
|
May
25, 2009
|
0.00
|
0.000000%
|
|
May
25, 2009
|
June
25, 2009
|
0.00
|
0.000000%
|
|
June
25, 2009
|
July
25, 2009
|
4,467,017.66
|
6.999910%
|
|
July
25, 2009
|
August
25, 2009
|
10,049,156.06
|
6.761260%
|
|
August
25, 2009
|
September
25, 2009
|
15,414,563.97
|
6.761330%
|
|
September
25, 2009
|
October
25, 2009
|
20,571,641.07
|
7.000100%
|
|
October
25, 2009
|
November
25, 2009
|
25,528,461.98
|
6.761450%
|
|
November
25, 2009
|
December
25, 2009
|
30,292,788.82
|
7.000230%
|
|
December
25, 2009
|
January
25, 2010
|
34,872,083.28
|
6.761580%
|
|
January
25, 2010
|
February
25, 2010
|
39,273,518.28
|
6.761640%
|
|
February
25, 2010
|
March
25, 2010
|
39,273,518.28
|
7.529030%
|
|
March
25, 2010
|
April
25, 2010
|
39,273,518.28
|
6.761770%
|
|
April
25, 2010
|
May
25, 2010
|
39,273,518.28
|
7.000560%
|
|
May
25, 2010
|
June
25, 2010
|
39,273,518.28
|
6.761900%
|
|
June
25, 2010
|
July
25, 2010
|
39,273,518.28
|
7.000700%
|
|
July
25, 2010
|
August
25, 2010
|
40,721,336.01
|
6.762030%
|
|
August
25, 2010
|
September
25, 2010
|
43,482,917.80
|
6.762100%
|
|
September
25, 2010
|
October
25, 2010
|
46,137,174.11
|
7.000900%
|
|
October
25, 2010
|
November
25, 2010
|
48,688,267.84
|
6.762230%
|
|
November
25, 2010
|
December
25, 2010
|
51,140,200.69
|
7.001040%
|
|
December
25, 2010
|
January
25, 2011
|
53,496,819.38
|
6.762360%
|
|
January
25, 2011
|
February
25, 2011
|
55,761,821.65
|
6.762430%
|
|
February
25, 2011
|
March
25, 2011
|
56,012,102.68
|
7.529910%
|
|
March
25, 2011
|
April
25, 2011
|
55,442,284.22
|
6.762570%
|
|
April
25, 2011
|
May
25, 2011
|
54,855,286.22
|
7.001400%
|
|
May
25, 2011
|
June
25, 2011
|
54,252,725.97
|
6.762710%
|
|
June
25, 2011
|
July
25, 2011
|
53,636,135.25
|
7.001540%
|
|
July
25, 2011
|
August
25, 2011
|
53,006,964.22
|
6.762850%
|
|
August
25, 2011
|
September
25, 2011
|
52,366,585.08
|
6.762920%
|
|
September
25, 2011
|
October
25, 2011
|
51,715,715.22
|
7.001760%
|
|
October
25, 2011
|
November
25, 2011
|
51,055,540.49
|
6.763060%
|
|
November
25, 2011
|
December
25, 2011
|
50,387,863.85
|
7.001910%
|
|
December
25, 2011
|
January
25, 2012
|
49,713,780.35
|
6.763210%
|
|
January
25, 2012
|
February
25, 2012
|
83,678,768.28
|
6.763280%
|
|
February
25, 2012
|
March
25, 2012
|
81,641,970.02
|
7.257380%
|
|
March
25, 2012
|
April
25, 2012
|
79,654,376.57
|
6.763420%
|
|
April
25, 2012
|
May
25, 2012
|
77,714,805.59
|
7.002280%
|
|
May
25, 2012
|
June
25, 2012
|
75,822,103.04
|
6.763570%
|
|
June
25, 2012
|
July
25, 2012
|
73,975,142.49
|
7.002430%
|
|
July
25, 2012
|
August
25, 2012
|
72,172,824.50
|
6.763720%
|
|
August
25, 2012
|
September
25, 2012
|
70,414,075.93
|
6.763800%
|
|
September
25, 2012
|
October
25, 2012
|
68,697,849.36
|
7.002670%
|
|
October
25, 2012
|
November
25, 2012
|
67,023,122.43
|
6.763950%
|
|
November
25, 2012
|
December
25, 2012
|
65,388,897.27
|
7.002830%
|
|
December
25, 2012
|
January
25, 2013
|
63,794,199.91
|
6.764100%
|
|
January
25, 2013
|
February
25, 2013
|
62,238,079.70
|
6.764180%
|
|
February
25, 2013
|
March
25, 2013
|
60,719,608.77
|
7.531860%
|
|
March
25, 2013
|
April
25, 2013
|
59,237,881.46
|
6.764340%
|
|
April
25, 2013
|
May
25, 2013
|
57,792,013.83
|
7.003230%
|
|
May
25, 2013
|
June
25, 2013
|
56,381,143.10
|
6.764490%
|
|
June
25, 2013
|
July
25, 2013
|
55,004,427.16
|
7.003390%
|
|
July
25, 2013
|
August
25, 2013
|
53,661,044.08
|
6.764660%
|
|
August
25, 2013
|
September
25, 2013
|
52,350,191.63
|
6.764740%
|
|
September
25, 2013
|
October
25, 2013
|
51,071,086.81
|
7.003650%
|
|
October
25, 2013
|
November
25, 2013
|
49,822,965.36
|
6.764900%
|
|
November
25, 2013
|
December
25, 2013
|
48,605,081.38
|
7.003820%
|
|
December
25, 2013
|
January
25, 2014
|
47,416,706.80
|
6.765070%
|
|
January
25, 2014
|
February
25, 2014
|
46,257,131.04
|
6.765150%
|
|
February
25, 2014
|
March
25, 2014
|
45,125,660.55
|
7.532940%
|
|
March
25, 2014
|
April
25, 2014
|
44,021,618.40
|
6.765320%
|
|
April
25, 2014
|
May
25, 2014
|
42,944,343.88
|
7.004250%
|
|
May
25, 2014
|
June
25, 2014
|
41,893,192.15
|
6.765490%
|
|
June
25, 2014
|
July
25, 2014
|
40,867,533.81
|
7.004430%
|
|
July
25, 2014
|
August
25, 2014
|
39,866,754.57
|
6.765670%
|
|
August
25, 2014
|
September
25, 2014
|
38,890,254.87
|
6.765750%
|
|
September
25, 2014
|
October
25, 2014
|
37,937,449.53
|
7.004700%
|
|
October
25, 2014
|
November
25, 2014
|
37,007,767.41
|
6.765930%
|
|
November
25, 2014
|
December
25, 2014
|
36,100,651.06
|
7.004890%
|
|
December
25, 2014
|
The
Termination Date
|
35,215,556.44
|
6.766110%
|
Annex
A
Paragraph
13 of the Credit Support Annex
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of January 31, 2007 between
HSBC
Bank
USA, National Association (hereinafter referred to as “Party
A”
or
“Pledgor”)
and
HSBC
Bank
USA, National Association, not individually, but solely as Trustee with
respect
to the Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series
2007-1
(hereinafter referred to as “Party
B”
or
“Secured
Party”).
For
the
avoidance of doubt, and notwithstanding anything to the contrary that
may be
contained in the Agreement, this Credit Support Annex shall relate solely
to the
Transaction documented in the Confirmation dated January 31, 2007 between
Party
A and Party B, Reference Number 453816HN/453817HN.
Paragraph
13. Elections and Variables.
| (a) |
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
| (b) |
Credit
Support Obligations.
|
| (i) |
Delivery
Amount, Return Amount and Credit Support
Amount.
|
| (A) |
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I)
by deleting the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
|
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
of
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured Party,
|
|
(2)
|
the
amount by which (a) the Xxxxx’x First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Xxxxx’x First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party,
and
|
|
(3)
|
the
amount by which (a) the Xxxxx’x Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Xxxxx’x Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the
Secured
Party.
|
| (B) |
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
|
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the
least of
|
(1)
|
the
amount by which (a) the S&P Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party exceeds (b)
the S&P
Credit Support Amount for such Valuation Date,
|
|
(2)
|
the
amount by which (a) the Xxxxx’x First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party
exceeds (b)
the Xxxxx’x First Trigger Credit Support Amount for such Valuation Date,
and
|
|
(3)
|
the
amount by which (a) the Xxxxx’x Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party
exceeds (b)
the Xxxxx’x Second Trigger Credit Support Amount for such Valuation
Date.
|
| (C) |
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the
S&P
Credit Support Amount, the Xxxxx’x First Trigger Credit Support Amount, or
the Xxxxx’x Second Trigger Credit Support Amount, in each case for such
Valuation Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
|
| (ii) |
Eligible
Collateral.
|
On
any
date, the items set forth in Schedule I will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral to be denominated in
USD).
| (iii) |
Other
Eligible Support.
|
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
| (iv) |
Threshold.
|
| (A) |
“Independent
Amount”
means zero with respect to Party A and Party
B.
|
| (B) |
“Threshold”
means, with respect to Party A and any Valuation Date, zero
if (i) a
Collateral Event has occurred and has been continuing (x) for
at least 30
days or (y) since this Annex was executed, or (ii) a Required
Ratings
Downgrade Event has occurred and is continuing; otherwise,
infinity.
|
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
| (C) |
“Minimum
Transfer Amount” means
USD 50,000 with respect to Party A and Party
B.
|
| (D) |
Rounding:
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 10,000.
|
| (c) |
Valuation
and Timing.
|
| (i) |
“Valuation
Agent”
means Party A; provided, however, that if an Event of Default
shall have
occurred with respect to which Party A is the Defaulting Party,
Party B
shall have the right to designate as Valuation Agent an independent
party,
reasonably acceptable to Party A, the cost for which shall
be borne by
Party A. All calculations by the Valuation Agent must be made
in
accordance with standard market practice, including, in the
event of a
dispute as to the Value of any Eligible Credit Support or Posted
Credit
Support, by making reference to quotations received by the
Valuation Agent
from one or more Pricing Sources.
|
| (ii) |
“Valuation
Date” means
each Local Business Day on which any of the S&P Credit Support Amount,
the Xxxxx’x First Trigger Credit Support Amount or the Xxxxx’x Second
Trigger Credit Support Amount is greater than
zero.
|
| (iii) |
“Valuation
Time” means
the close of business in the city of the Valuation Agent on
the Local
Business Day immediately preceding the Valuation Date or date
of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made as
of
approximately the same time on the same date. The Valuation
Agent will
notify each party (or the other party, if the Valuation Agent
is a party)
of its calculations not later than the Notification Time on
the applicable
Valuation Date (or in the case of Paragraph 6(d), the Local
Business Day
following the day on which such relevant calculations are
performed).”
|
| (iv) |
“Notification
Time” means
11:00 a.m., New York time, on a Local Business Day.
|
| (v) |
External
Verification.
Notwithstanding anything to the contrary in the definitions
of Valuation
Agent or Valuation Date, at any time at which Party A (or,
to the extent
applicable, its Credit Support Provider) does not have a long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall (A) calculate the Secured Party’s Exposure and
the S&P Value of Posted Credit Suppport on each Valuation Date based
on internal marks and (B) verify such calculations with external
marks
monthly by obtaining on the last Local Business Day of each
calendar month
two external marks for each Transaction to which this Annex
relates and
for all Posted Credit Suport; such verification of the Secured
Party’s
Exposure shall be based on the higher of the two external marks.
Each
external xxxx in respect of a Transaction shall be obtained
from an
independent Reference Market-maker that would be eligible and
willing to
enter into such Transaction in the absence of the current derivative
provider, provided that an external xxxx xxx not be obtained
from the same
Reference Market-maker more than four times in any 12-month
period. The
Valuation Agent shall obtain these external marks directly
or through an
independent third party, in either case at no cost to Party
B. The
Valuation Agent shall calculate on each Valuation Date (for
purposes of
this paragraph, the last Local Business Day in each calendar
month
referred to above shall be considered a Valuation Date) the
Secured
Party’s Exposure based on the greater of the Valuation Agent’s internal
marks and the external marks received. If the S&P Value on any such
Valuation Date of all Posted Credit Support then held by the
Secured Party
is less than the S&P Credit Support Amount on such Valuation Date (in
each case as determined pursuant to this paragraph), Party
A shall, within
three Local Business Days of such Valuation Date, Transfer
to the Secured
Party Eligible Credit Support having an S&P Value as of the date of
Transfer at least equal to such deficiency.
|
| (vi) |
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable, its
Credit
Support Provider) does not have a long-term unsubordinated
and unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations
of the Secured
Party’s Exposure and the S&P Value of any Eligible Credit Support or
Posted Credit Support for that Valuation Date. The Valuation
Agent shall
also provide to S&P any external marks received pursuant to the
preceding paragraph.
|
| (d) |
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party
if the
Termination Event occurs with respect to that party): With
respect to
Party A: any Additional Termination Event with respect to which
Party A is
the sole Affected Party. With respect to Party B:
None.
|
| (e) |
Substitution.
|
| (i) |
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
|
| (ii) |
Consent.
If
specified here as applicable, then the Pledgor must obtain
the Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
|
| (f) |
Dispute
Resolution.
|
| (i) |
“Resolution
Time”
means 1:00 p.m. New York time on the Local Business Day following
the date
on which the notice of the dispute is given under Paragraph
5.
|
| (ii) |
Value.
Notwithstanding anything to the contrary in Paragraph 12, for
the purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Xxxxx’x First Trigger
Value, and Xxxxx’x Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
|
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
sum of (A) the product of (1)(x) the bid price at the Valuation Time
for such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a
national
securities exchange, the bid price for such securities quoted at the
Valuation
Time by any principal market maker for such securities selected by the
Valuation
Agent, or (z) if no such bid price is listed or quoted for such date,
the bid
price listed or quoted (as the case may be) at the Valuation Time for
the day
next preceding such date on which such prices were available and (2)
the
applicable Valuation Percentage for such Eligible Collateral, and (B)
the
accrued interest on such securities (except to the extent Transferred
to the
Pledgor pursuant to Paragraph 6(d)(ii) or included in the applicable
price
referred to in the immediately preceding clause (A)) as of such
date.
| (iii) |
Alternative.
The provisions of Paragraph 5 will
apply.
|
| (g) |
Holding
and Using Posted
Collateral.
|
| (i) |
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or any Custodian) will be entitled to hold Posted Collateral
pursuant
to Paragraph 6(b).
|
Party
B
may appoint as Custodian (A) the entity then serving as Securities
Administrator
or (B)
any entity other than the entity then serving as Securities Administrator
if
such other entity (or, to the extent applicable, its parent company or
credit
support provider) shall then have a short-term unsecured and unsubordinated
debt
rating from S&P of at least “A-1.”
Initially,
the Custodian
for
Party B is: Securities Administrator.
| (ii) |
Use
of Posted Collateral. The
provisions of Paragraph 6(c)(i) will not apply to Party B,
but the
provisions of Paragraph 6(c)(ii) will apply to Party B.
|
| (h) |
Distributions
and Interest Amount.
|
| (i) |
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral
in the form
of Cash that is held by Party B or its Custodian. Posted Collateral
in the
form of Cash shall be invested in such overnight (or redeemable
within two
Local Business Days of demand) Permitted Investments rated
at least (x)
AAAm or AAAm-G by S&P and (y) Prime-1 by Xxxxx’x or Aaa by Xxxxx’x, as
directed by Party A (unless (x) an Event of Default or an Additional
Termination Event has occurred with respect to which Party
A is the
defaulting or sole Affected Party or (y) an Early Termination
Date has
been designated, in which case such investment shall be held
uninvested).
Gains and losses incurred in respect of any investment of Posted
Collateral in the form of Cash in Permitted Investments as
directed by
Party A shall be for the account of Party
A.
|
| (ii) |
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the second
Local
Business Day following the end of each calendar month and on
any other
Local Business Day on which Posted Collateral in the form of
Cash is
Transferred to the Pledgor pursuant to Paragraph 3(b); provided,
however,
that the obligation of Party B to Transfer any Interest Amount
to Party A
shall be limited to the extent that Party B has earned and
received such
funds and such funds are available to Party B.
|
| (iii) |
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will
apply.
|
| (i) |
Additional
Representation(s).
There are no additional representations by either
party.
|
| (j) |
Other
Eligible Support and Other Posted Support.
|
| (i) |
“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (ii) |
“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
|
| (k) |
Demands
and Notices.All
demands, specifications and notices under this Annex will be
made pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may
from time to
time designate by giving notice (in accordance with the terms
of this
paragraph) to the other party:
|
If
to
Party A, at the address specified pursuant to the Notices Section of
this
Agreement.
If
to
Party B, at the address specified pursuant to the Notices Section of
this
Agreement.
If
to
Party B’s Custodian:
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Client Manager - NHEL 2007-1
Tel:
000-000-0000
Fax:
000-000-0000
| (l) |
Address
for Transfers.
Each Transfer hereunder shall be made to the address specified
below or to
an address specified in writing from time to time by the party
to which
such Transfer will be made.
|
Party
A
account details for holding collateral:
HSBC
Bank
USA, National Association
ABA
#
000-000-000
For
credit to Department 299
A/C:
000-00000-0
HSBC
Derivative Products Group
Party
B’s
Custodian account details for holding collateral
Xxxxx
Fargo Bank, N.A.
ABA
#
000-000-000
For
Credit to: SAS Clearing
A/C:
0000000000
FFC:
NHEL
2007-1, Cap Collateral Account, 00000000
| (m) |
Other
Provisions.
|
| (i) |
Collateral
Account.
Party B shall open and maintain a segregated account, which
shall be an
Eligible Account, and hold, record and identify all Posted
Collateral in
such segregated account.
|
| (ii) |
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything
to the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in
Paragraph 2,
the acknowledgement in the final sentence of Paragraph 8(a)
and the
representations in Paragraph 9.
|
| (iii) |
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Xxxxx’x First Trigger Value,
Xxxxx’x Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value” and
(B) deleting the words “the Value” and inserting in lieu thereof “S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
Paragraph 5 (flush language) is hereby amended by deleting
the word
“Value” and inserting in lieu thereof “S&P Value, Xxxxx’x First
Trigger Value, or Xxxxx’x Second Trigger Value”. Paragraph 5(i) (flush
language) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, Xxxxx’x First Trigger Value, and Xxxxx’x
Second Trigger Value”. Paragraph 5(i)(C) is hereby amended by deleting the
word “the Value, if” and inserting in lieu thereof “any one or more of the
S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger
Value, as may be”. Paragraph 5(ii) is hereby amended by (1) deleting the
first instance of the words “the Value” and inserting in lieu thereof “any
one or more of the S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x
Second Trigger Value” and (2) deleting the second instance of the words
“the Value” and inserting in lieu thereof “such disputed S&P Value,
Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger Value”. Each of
Paragraph 8(b)(iv)(B) and Paragraph 11(a) is hereby amended
by deleting
the word “Value” and inserting in lieu thereof “least of the S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
|
| (iv) |
Form
of Annex. Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form
of ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to
New York Law
Only version) as published and copyrighted in 1994 by the International
Swaps and Derivatives Association,
Inc.
|
| (v) |
Events
of Default.
Paragraph 7 will not apply to cause any Event of Default to
exist with
respect to Party B except that Paragraph 7(i) will apply to
Party B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex. Notwithstanding anything to the contrary in
Paragraph 7,
any failure by Party A to comply with or perform any obligation
to be
complied with or performed by Party A under the Credit Support
Annex shall
only be an Event of Default if (A) a
S&P Required Ratings Downgrade Event has occurred and been continuing
for 30 or more Local Business Days, and (B) such failure is
not remedied
on or before the third Local Business Day after notice of such
failure is
given to Party A.
|
| (vi) |
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the
Pledgor will
be responsible for, and will reimburse the Secured Party for,
all transfer
and other taxes and other costs involved in any Transfer of
Eligible
Collateral.
|
| (vii) |
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately
after “the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
|
(ix)
Additional
Definitions.
As used
in this Annex:
“Collateral
Event” means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“Exposure”
has the meaning specified in Paragraph 12, except that after the word
“Agreement” the words “(assuming, for this purpose only, that Part 1(f) of the
Schedule is deleted)” shall be inserted.
“Local
Business Day”
means:
any day on which (A) commercial banks are open for business (including
dealings
in foreign exchange and foreign currency deposits) in New York and the
location
of Party A, Party B and any Custodian, and (B) in relation to a Transfer
of
Eligible Collateral, any day on which the clearance system agreed between
the
parties for the delivery of Eligible Collateral is open for acceptance
and
execution of settlement instructions (or in the case of a Transfer of
Cash or
other Eligible Collateral for which delivery is contemplated by other
means a
day on which commercial banks are open for business (including dealings
in
foreign exchange and foreign deposits) in New York and the location of
Party A,
Party B and any Custodian.
“Xxxxx’x
First Trigger Event” means
that no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x First Trigger Ratings Threshold.
“Xxxxx’x
First Trigger Credit Support Amount” means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (I) a Xxxxx’x First Trigger E |
