Exhibit 1
NOMURA ASSET ACCEPTANCE CORPORATION,
Depositor
NOMURA CREDIT & CAPITAL, INC.,
Seller
OPTION ONE MORTGAGE CORPORATION,
Servicer
and
JPMORGAN CHASE BANK,
Trustee and Custodian
--------------------
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2003
----------------------------------------
NOMURA ASSET ACCEPTANCE CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-A1
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 DEFINED TERMS..............................................-4-
Section 1.02 ALLOCATION OF CERTAIN INTEREST SHORTFALLS.................-43-
ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND WARRANTIES
Section 2.01 CONVEYANCE OF TRUST FUND..................................-45-
Section 2.02 ACCEPTANCE OF THE MORTGAGE LOANS..........................-46-
Section 2.03 REPRESENTATIONS, WARRANTIES AND COVENANTS OF OPTION ONE
AND THE SELLER............................................-49-
Section 2.04 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR...........-53-
Section 2.05 DELIVERY OF OPINION OF COUNSEL IN CONNECTION WITH
SUBSTITUTIONS AND REPURCHASES.............................-54-
Section 2.06 COUNTERSIGNATURE AND DELIVERY OF CERTIFICATES.............-55-
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 3.01 OPTION ONE................................................-56-
Section 3.02 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS................-57-
Section 3.03 SUBSERVICERS..............................................-58-
Section 3.04 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SERVICER
TO BE HELD FOR TRUSTEE....................................-59-
Section 3.05 MAINTENANCE OF HAZARD INSURANCE...........................-59-
Section 3.06 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS..........-61-
Section 3.07 MAINTENANCE OF INSURANCE POLICIES.........................-61-
Section 3.08 RESERVED..................................................-62-
Section 3.09 REALIZATION UPON DEFAULTED MORTGAGE LOANS; DETERMINATION
OF EXCESS LIQUIDATION PROCEEDS AND REALIZED LOSSES;
REPURCHASES OF CERTAIN MORTGAGE LOANS.....................-62-
Section 3.10 SERVICING COMPENSATION....................................-64-
i
Section 3.11 REO PROPERTY..............................................-64-
Section 3.12 LIQUIDATION REPORTS.......................................-65-
Section 3.13 ANNUAL CERTIFICATE AS TO COMPLIANCE.......................-65-
Section 3.14 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS'
SERVICING REPORT..........................................-66-
Section 3.15 BOOKS AND RECORDS.........................................-66-
Section 3.16 TRUSTEE...................................................-67-
Section 3.17 REMIC-RELATED COVENANTS...................................-67-
Section 3.18 ENFORCING OBLIGATIONS OF THE SERVICERS....................-68-
Section 3.19 RELEASE OF MORTGAGE FILES.................................-68-
Section 3.20 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF A SERVICER
TO BE HELD FOR TRUSTEE....................................-69-
Section 3.21 POSSESSION OF CERTAIN INSURANCE POLICIES AND DOCUMENTS....-69-
Section 3.22 ANNUAL CERTIFICATE AS TO COMPLIANCE.......................-69-
Section 3.23 UCC.......................................................-71-
Section 3.24 OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS.............-71-
ARTICLE IV
ACCOUNTS
Section 4.01 COLLECTION OF MORTGAGE LOAN PAYMENTS; CUSTODIAL ACCOUNT...-72-
Section 4.02 PERMITTED WITHDRAWALS FROM THE CUSTODIAL ACCOUNT..........-74-
Section 4.03 REPORTS TO TRUSTEE........................................-75-
Section 4.04 COLLECTION OF TAXES; ASSESSMENTS AND SIMILAR ITEMS;
ESCROW ACCOUNTS...........................................-76-
Section 4.05 WMBFA CUSTODIAL ACCOUNT...................................-77-
Section 4.06 DISTRIBUTION ACCOUNT......................................-78-
Section 4.07 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION
ACCOUNT...................................................-78-
Section 4.08 DUTIES OF THE CREDIT RISK MANAGER; TERMINATION............-80-
Section 4.09 LIMITATION UPON LIABILITY OF THE CREDIT RISK MANAGER......-81-
ARTICLE V
ADVANCES AND DISTRIBUTIONS
Section 5.01 ADVANCES; ADVANCE FACILITY................................-83-
Section 5.02 COMPENSATING INTEREST PAYMENTS............................-85-
Section 5.03 REMIC DISTRIBUTIONS.......................................-85-
ii
Section 5.04 DISTRIBUTIONS.............................................-85-
Section 5.05 ALLOCATION OF REALIZED LOSSES.............................-91-
Section 5.06 MONTHLY STATEMENTS TO CERTIFICATEHOLDERS..................-93-
Section 5.07 REMIC DESIGNATIONS AND REMIC I ALLOCATIONS...............-96-
ARTICLE VI
THE CERTIFICATES
Section 6.01 THE CERTIFICATES..........................................-99-
Section 6.02 CERTIFICATE REGISTER; REGISTRATION OF TRANSFER AND
EXCHANGE OF CERTIFICATES.................................-100-
Section 6.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES........-103-
Section 6.04 PERSONS DEEMED OWNERS....................................-104-
Section 6.05 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES................................................-104-
Section 6.06 BOOK-ENTRY CERTIFICATES..................................-104-
Section 6.07 NOTICES TO DEPOSITORY....................................-105-
Section 6.08 DEFINITIVE CERTIFICATES..................................-105-
Section 6.09 MAINTENANCE OF OFFICE OR AGENCY..........................-106-
ARTICLE VII
THE DEPOSITOR AND OPTION ONE
Section 7.01 LIABILITIES OF THE DEPOSITOR AND OPTION ONE..............-107-
Section 7.02 MERGER OR CONSOLIDATION OF THE DEPOSITOR OR OPTION ONE...-107-
Section 7.03 INDEMNIFICATION DEPOSITOR................................-107-
Section 7.04 LIMITATIONS ON LIABILITY OF THE DEPOSITOR, OPTION ONE
AND OTHERS...............................................-108-
Section 7.05 SERVICER NOT TO RESIGN...................................-109-
Section 7.06 TERMINATION OF OPTION ONE WITHOUT CAUSE..................-109-
ARTICLE VIII
DEFAULT; TERMINATION OF SERVICER
Section 8.01 SERVICER DEFAULT.........................................-111-
Section 8.02 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.................-112-
Section 8.03 NOTIFICATION TO CERTIFICATEHOLDERS.......................-114-
iii
ARTICLE IX
CONCERNING THE TRUSTEE AND THE CUSTODIAN
Section 9.01 DUTIES OF TRUSTEE........................................-115-
Section 9.02 CERTAIN MATTERS AFFECTING THE TRUSTEE....................-116-
Section 9.03 TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS....-118-
Section 9.04 TRUSTEE MAY OWN CERTIFICATES.............................-119-
Section 9.05 TRUSTEE'S FEES AND EXPENSES..............................-119-
Section 9.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE.....................-119-
Section 9.07 INSURANCE................................................-120-
Section 9.08 RESIGNATION AND REMOVAL OF TRUSTEE.......................-120-
Section 9.09 SUCCESSOR TRUSTEE........................................-121-
Section 9.10 MERGER OR CONSOLIDATION OF TRUSTEE.......................-121-
Section 9.11 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE............-121-
Section 9.12 TAX MATTERS..............................................-123-
Section 9.13 CUSTODIAN'S FEES AND EXPENSES............................-125-
Section 9.14 INDEMNIFICATION OF CUSTODIAN.............................-125-
Section 9.15 RELIANCE OF CUSTODIAN....................................-125-
ARTICLE X
TERMINATION
Section 10.01 TERMINATION UPON LIQUIDATION OR REPURCHASE OF ALL
MORTGAGE LOANS...........................................-128-
Section 10.02 FINAL DISTRIBUTION ON THE CERTIFICATES...................-128-
Section 10.03 ADDITIONAL TERMINATION REQUIREMENTS......................-129-
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 AMENDMENT................................................-131-
Section 11.02 RECORDATION OF AGREEMENT; COUNTERPARTS...................-132-
Section 11.03 GOVERNING LAW............................................-132-
Section 11.04 INTENTION OF PARTIES.....................................-132-
Section 11.05 NOTICES..................................................-133-
Section 11.06 SEVERABILITY OF PROVISIONS...............................-134-
Section 11.07 ASSIGNMENT...............................................-134-
Section 11.08 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS...............-134-
iv
Section 11.09 CERTIFICATES NONASSESSABLE AND FULLY PAID................-135-
Section 11.10 EXECUTION BY TRUSTEE.....................................-135-
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EXHIBITS
Exhibit A-1 Form of Class A[1][2][3][4][5][6][7] Certificates
Exhibit A-2 Form of Class APO Certificates
Exhibit A-3 Form of Class AIO Certificates
Exhibit A-4 Form of Class M Certificates
Exhibit A-5 Form of Class B[1][2][3][4][5] Certificates
Exhibit A-6 Form of Class P Certificates
Exhibit A-7 Form of Class R Certificates
Exhibit B-1 Mortgage Loan Schedule
Exhibit B-2 Option One Mortgage Loans Subject to U.S. Bank Custodial
Agreement
Exhibit C-1 Form of Initial Certification of Trustee
Exhibit C-2 Form of Interim Certification of Trustee
Exhibit C-3 Form of Final Certification of Trustee
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 Request for Release
Exhibit I DTC Letter of Representations
Exhibit J Schedule of Mortgage Loans with Lost Notes
Exhibit K Form of Custodial Agreement
vi
POOLING AND SERVICING AGREEMENT, dated as of April 1, 2003, among
NOMURA ASSET ACCEPTANCE CORPORATION, a Delaware corporation, as depositor (the
"Depositor"), NOMURA CREDIT & CAPITAL, INC., a Delaware corporation, as seller
(in such capacity, the "Seller"), OPTION ONE MORTGAGE CORPORATION, a California
corporation, as a servicer and JPMORGAN CHASE BANK, a New York banking
corporation, not in its individual capacity, but solely as trustee (the
"Trustee").
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates.
REMIC I
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement as a real estate mortgage investment
conduit (a "REMIC") for federal income tax purposes, and such segregated pool of
assets will be designated as "REMIC I." The Class R-1 Interest will represent
the sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions (as defined herein) under federal income tax law. The following table
irrevocably sets forth the designation, the Uncertificated REMIC I Pass-Through
Rate, the initial Uncertificated Principal Balance, and solely for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible
maturity date" for each of the REMIC I Regular Interests. None of the REMIC I
Regular Interests will be certificated.
Uncertificated
Initial Uncertificated REMIC I Pass- Assumed Final
Designation Principal Balance Through Rate Maturity Date(1)
----------- ---------------------- -------------- ----------------
LT-1SUB $184.37 5.50% May 25, 2033
LT-1IO N/A(2) Xxxxxxxx(0) Xxx 00, 0000
XX-0XX $102,984.73 0.00%(4) May 25, 2033
LT-1ZZZ $25,336,525.24 5.50% May 25, 2033
LT-2SUB $346.29 6.00% May 25, 2033
LT-2IO N/A(5) Xxxxxxxx(0) Xxx 00, 0000
XX-0XX $76,086.97 0.00%(4) May 25, 2033
LT-2ZZZ $47,682,585.21 6.00% May 25, 2033
LT-3SUB $237.89 6.50% May 25, 2033
LT-3IO N/A(6) Xxxxxxxx(0) Xxx 00, 0000
XX-0XX $67,662.03 0.00%(4) May 25, 2033
LT-3ZZZ $32,743,690.29 6.50% May 25, 2033
LT-4SUB $418.29 7.00% May 25, 2033
LT-4IO N/A(7) Xxxxxxxx(0) Xxx 00, 0000
XX-0XX $696,139.62 0.00%(4) May 25, 2033
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LT-4ZZZ $56,993,504.94 7.00% May 25, 2033
LT-5SUB 175.32 7.00% May 25, 2033
LT-5IO N/A(8) Xxxxxxxx(0) Xxx 00, 0000
XX-0XX $274,427.71 0.00%(4) May 25, 2033
LT-5ZZZ $23,905,056.82 7.00% May 25, 2033
LT-6SUB $77.67 7.00% May 25, 2033
LT-6IO N/A(9) Xxxxxxxx(0) Xxx 00, 0000
XX-0XX $562,891.91 0.00%(4) May 25, 2033
LT-6ZZZ $10,151,653.28 7.00% May 25, 2033
LT-7SUB $86.24 5.00% May 25, 2033
LT-7IO N/A(10) Variable(3) May 25, 2033
LT-7ZZZ $11,897,273.80 5.00% May 25, 2033
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the maturity
date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each Class of
Certificates that represents one or more of the "regular interests" in
REMIC I.
(2) REMIC I Regular Interest LT-1IO will not have an Uncertificated
Principal Balance and is not entitled to distributions of principal.
Interest will accrue on an Uncertificated Notional Balance equal to the
Stated Principal Balance of the Group I Mortgage Loans.
(3) Calculated in accordance with the definition of "Uncertificated REMIC I
Pass-Through Rate" herein.
(4) REMIC I Regular Interest LT-1PO, REMIC I Regular Interest LT-2PO, REMIC
I Regular Interest LT-3PO, REMIC I Regular Interest LT-4PO, REMIC I
Regular Interest LT-5PO and REMIC I Regular Interest LT-6PO are
principal only certificates and will not be entitled to distributions
of interest.
(5) REMIC I Regular Interest LT-2IO will not have an Uncertificated
Principal Balance and is not entitled to distributions of principal.
Interest will accrue on an Uncertificated Notional Balance equal to the
Stated Principal Balance of the Group II Mortgage Loans.
(6) REMIC I Regular Interest LT-3IO will not have an Uncertificated
Principal Balance and is not entitled to distributions of principal.
Interest will accrue on an Uncertificated Notional Balance equal to the
Stated Principal Balance of the Group III Mortgage Loans.
(7) REMIC I Regular Interest LT-4IO will not have an Uncertificated
Principal Balance and is not entitled to distributions of principal.
Interest will accrue on an Uncertificated Notional Balance equal to the
Stated Principal Balance of the Group IV Mortgage Loans.
(8) REMIC I Regular Interest LT-5IO will not have an Uncertificated
Principal Balance and is not entitled to distributions of principal.
Interest will accrue on an Uncertificated Notional Balance equal to the
Stated Principal Balance of the Group V Mortgage Loans.
(9) REMIC I Regular Interest LT-6IO will not have an Uncertificated
Principal Balance and is not entitled to distributions of principal.
Interest will accrue on an Uncertificated Notional Balance equal to the
Stated Principal Balance of the Group VI Mortgage Loans.
(10) REMIC I Regular Interest LT-7IO will not have an Uncertificated
Principal Balance and is not entitled to distributions of principal.
Interest will accrue on an Uncertificated Notional Balance equal to the
Stated Principal Balance of the Group VII Mortgage Loans.
REMIC II
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such
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segregated pool of assets will be designated as "REMIC II". The Class R-2
Interest will represent the sole class of "residual interests" in REMIC II for
purposes of the REMIC Provisions.
The following table irrevocably sets forth the Class designation,
Pass-Through Rate and Initial Certificate Principal Balance for each Class of
Certificates that represents one or more of the "regular interests" in REMIC II
created hereunder:
Initial Certificate Assumed Final
Class Designation Principal Balance Pass-Through Rate Maturity Date(1)
----------------- ------------------- --------------------------- ----------------
Class A1 $23,493,000.00 Class A1 Pass-Through Rate May 25, 2033
Class A2 $44,220,000.00 Class A2 Pass-Through Rate May 25, 2033
Class A3 $30,365,000.00 Class A3 Pass-Through Rate May 25, 2033
Class A4 $52,811,000.00 Class A4 Pass-Through Rate May 25, 2033
Class A5 $22,152,000.00 Class A5 Pass-Through Rate May 25, 2033
Class A6 $9,375,000.00 Class A6 Pass-Through Rate May 25, 2033
Class A7 $11,035,000.00 Class A7 Pass-Through Rate May 25, 2033
Class AIO N/A(2) Class AIO Pass-Through Rate May 25, 2033
Class APO $1,780,192.97 N/A(3) May 25, 2033
Class M $6,525,000.00 Class M Pass Through Rate May 25, 2033
Class B1 $3,157,000.00 Class B1 Pass-Through Rate May 25, 2033
Class B2 $1,789,000.00 Class B2 Pass Through Rate May 25, 2033
Class B3 $1,684,000.00 Class B3 Pass-Through Rate May 25, 2033
Class B4 $948,000.00 Class B4 Pass-Through Rate May 25, 2033
Class B5 $1,157,815.65 Class B5 Pass-Through Rate May 25, 2033
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the maturity
date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each Class of
Certificates that represents one or more of the "regular interests" in
REMIC II.
(2) The Class AIO Certificates will accrue interest at the Class AIO
Pass-Through Rate on the Certificate Notional Balance of the Class AIO
Certificates calculated in accordance with the definition of "Notional
Balance" herein. The Class AIO Certificates will not be entitled to
distributions in respect of principal.
(3) The Class APO Certificates are principal only certificates and are not
entitled to distributions in respect of interest.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Seller and the Trustee agree as follows:
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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:
ACCOUNT: Either the Distribution Account or any Custodial Account.
ACCRUED CERTIFICATE INTEREST: With respect to the Certificates (other
than the Class APO Certificates) for any Distribution Date, means an amount
equal to the interest accrued during the related Interest Accrual Period at the
applicable Pass-Through Rate on the Certificate Principal Balance (or Notional
Balance) of such Certificate immediately prior to such Distribution Date less
such Certificate's share of any Net Interest Shortfall and the interest portion
of any Realized Losses on the related Mortgage Loans allocated to such
Certificate pursuant to Section 1.02. Accrued Certificate Interest is calculated
on the basis of a 360-day year consisting of twelve 30-day months. No Accrued
Certificate Interest will be payable with respect to any Class of Certificates
after the Distribution Date on which the outstanding Certificate Principal
Balance of such Certificate has been reduced to zero.
ADJUSTMENT AMOUNT: With respect to each anniversary of the Cut-Off
Date, the amount, if any, by which the Special Hazard Loss Coverage Amount
(without giving effect to the deduction of the Adjustment Amount for such
anniversary) exceeds the greatest of (x) the product of 1% and the Stated
Principal Balance of the Mortgage Loans on the Distribution Date immediately
preceding such anniversary, (y) the outstanding principal balance of the
Mortgage Loans secured by Mortgaged Properties in the highest California zip
code concentration on the Distribution Date immediately preceding such
anniversary, and (z) twice the Stated Principal Balance of the Mortgage Loan
which has the largest Stated Principal Balance on the Distribution Date
immediately preceding such anniversary.
ADVANCE: An advance of delinquent payments of principal or interest in
respect of a Mortgage Loan required to be made by the related Servicer pursuant
to Section 5.01 hereof or in accordance with the Servicing Agreement, as
applicable, or by the Trustee in its capacity as Successor Servicer pursuant to
Section 5.01 hereof.
AGGREGATE SUBORDINATE PERCENTAGE: With respect to any Distribution
Date, the sum of the Certificate Principal Balances of the Subordinated
Certificates divided by the aggregate of the Stated Principal Balances of the
Mortgage Loans (net of the applicable PO Percentage of the Stated Principal
Balance of each Discount Mortgage Loan).
AGREEMENT: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto made in accordance with the terms herein.
-4-
ALLOCABLE SHARE: With respect to each Class of Subordinated
Certificates and any Distribution Date, an amount equal to such Class's pro rata
share (based on the Certificate Principal Balance of each Class entitled
thereto) of the sum of each of the components of the definition of Subordinate
Optimal Principal Amount; provided that no class of Subordinated Certificates
shall be entitled on any Distribution Date to receive distributions pursuant to
clauses (ii), (iii) and (v) of the definition of Subordinate Optimal Principal
Amount unless the Class Prepayment Distribution Trigger for the related Class is
satisfied for such Distribution Date.
AMOUNT HELD FOR FUTURE DISTRIBUTION: As to any Distribution Date, the
aggregate amount held in the related Servicer's Custodial Account at the close
of business on the immediately preceding Determination Date on account of (i)
all Scheduled Payments or portions thereof received in respect of the Mortgage
Loans due after the related Due Period and (ii) Principal Prepayments and
Liquidation Proceeds received in respect of such Mortgage Loans after the last
day of the related Prepayment Period.
APPORTIONED SUBORDINATE PRINCIPAL DISTRIBUTION AMOUNT: With respect to
a Class of Subordinated Certificates and any Distribution Date, the product of
(i) the aggregate Subordinate Principal Distribution Amount for the Subordinated
Certificates net of amounts applied therefrom to pay any Class APO Certificate
Deferred Amounts and (ii) the applicable Apportionment Fraction.
APPORTIONMENT FRACTION: With respect to each Class of Subordinated
Certificates, and in the event that the Senior Certificates related to a Loan
Group or Loan Groups have been reduced to zero, a fraction the numerator of
which is equal to the Subordinate Optimal Principal Amount for each Loan Group
whose Senior Certificates have been reduced to zero and the denominator of which
is equal to the Subordinate Optimal Principal Amount with respect to all of the
Loan Groups in the aggregate.
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 related 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 April 29, 2003, by and among the Seller, WMBFA and
the Depositor evidencing the assignment of the Servicing Agreement and the
related Mortgage Loans to the Depositor.
BANKRUPTCY CODE: Title 11 of the United States Code.
BANKRUPTCY LOSS COVERAGE AMOUNT: With respect to any Distribution Date,
an amount equal to $119,827 (approximately 0.0569% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-Off Date), minus the
aggregate amount of previous Deficient Valuations and Debt Service Reductions.
As of any Distribution Date on or after the Cross-Over Date, the Bankruptcy Loss
Coverage Amount will be zero. The Bankruptcy Loss Coverage Amount may be further
reduced by the Trustee (including accelerating the manner in which such coverage
is reduced) provided that prior to any such
-5-
reduction, the Trustee shall obtain written confirmation from each Rating Agency
that such reduction shall not reduce the rating assigned to any Class of
Certificates by such Rating Agency below the lower of the then-current rating or
the rating assigned to such Certificates as of the Closing Date by such Rating
Agency.
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 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 States of California, Florida and Delaware or
the city in which the Corporate Trust Office of the Trustee is located are
authorized or obligated by law or executive order to be closed.
CERTIFICATE: Any one of the certificates of any Class executed and
authenticated by the Trustee in substantially the forms attached hereto as
Exhibits A-1 through A-7.
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 Certificate (other than any
Class AIO Certificate) and as of any Distribution Date, the Initial Certificate
Principal Balance of such Certificate 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) any Realized Losses, Subordinate Certificate Writedown Amounts
and any Class APO Certificate Deferred Payment Writedown Amounts allocated to
such Certificate on previous Distribution Dates. References herein to the
Certificate Principal Balance of a Class of Certificates shall mean the
Certificate Principal Balances of all Certificates in such Class; provided,
however that the Certificate Principal Balance of a Certificate will be
adjusted, in reverse order of priority, on each Distribution Date by the amount
of any Subsequent Recoveries received during the related Due Period as provided
in Section 5.05(i).
CERTIFICATE REGISTER: The register maintained pursuant to Section 6.02
hereof.
CERTIFICATEHOLDER OR HOLDER: The person in whose name a Certificate is
registered in the Certificate Register (initially, Cede & Co., as nominee for
the Depository, in the case of any Book-Entry Certificates).
CLASS: All Certificates bearing the same Class designation as set forth
in Section 6.01 hereof.
CLASS A1 CERTIFICATE: Any Certificate designated as a "Class A1
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 A1 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
-6-
CLASS A1 PASS-THROUGH RATE: On any Distribution Date, 5.50% per annum.
CLASS A2 CERTIFICATE: Any Certificate designated as a "Class A2
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 A2 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS A2 PASS-THROUGH RATE: On any Distribution Date, 6.00% per annum.
CLASS A3 CERTIFICATE: Any Certificate designated as a "Class A3
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 A3 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS A3 PASS-THROUGH RATE: On any Distribution Date, 6.50% per annum.
CLASS A4 CERTIFICATE: Any Certificate designated as a "Class A4
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 A4 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS A4 PASS-THROUGH RATE: On any Distribution Date, 7.00% per annum.
CLASS A5 CERTIFICATE: Any Certificate designated as a "Class A5
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 A5 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS A5 PASS-THROUGH RATE: On any Distribution Date, 7.00% per annum.
CLASS A6 CERTIFICATE: Any Certificate designated as a "Class A6
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 A6 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS A6 PASS-THROUGH RATE: On any Distribution Date, 7.00% per annum.
CLASS A7 CERTIFICATE: Any Certificate designated as a "Class A7
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 A7 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS A7 PASS-THROUGH RATE: On any Distribution Date, 5.00% per annum.
CLASS AIO CERTIFICATE: Any Certificate designated as a "Class AIO
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 AIO Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
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CLASS AIO PASS-THROUGH RATE: On any Distribution Date, a rate per annum
equal to the weighted average of the greater of (i) zero and (ii) the excess of
(a) the Net Mortgage Rate of each Mortgage Loan over (b) 5.50% for each Mortgage
Loan in Loan Group I, 6.00% for each Mortgage Loan in Loan Group II, 6.50% for
each Mortgage Loan in Loan Group III, 7.00% for each Mortgage Loan in Loan Group
IV, 7.00% for each Mortgage Lan in Loan Group V, 7.00% for each Mortgage Loan in
Loan Group VI and 5.00% for each Mortgage Loan in Loan Group VII. For federal
income tax purposes, however, the Class AIO Certificates will not have a
Pass-Through Rate and the Accrued Certificate Interest for the Class AIO
Certificates and any Distribution Date will be deemed to be 100% of the amount
distributed on REMIC I Regular Interest LT-1IO, REMIC I Regular Interest LT-2IO,
REMIC I Regular Interest LT-3IO, REMIC I Regular Interest LT-4IO, REMIC I
Regular Interest LT-5IO, REMIC I Regular Interest LT-6IO and REMIC I Regular
Interest LT-7IO.
CLASS APO CERTIFICATE: Any Certificate designated as a "Class APO
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 APO Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS APO CERTIFICATE DEFERRED AMOUNT: With respect to each
Distribution Date, the aggregate of all amounts allocable on such Distribution
Date to the Class APO Certificates in respect of the principal portion of
applicable Realized Losses on Discount Mortgage Loans and all amounts previously
allocated in respect of such losses and such shortfall to the Class APO
Certificates and not distributed on prior Distribution Dates. No interest shall
accrue on any Class APO Certificate Deferred Amount.
CLASS APO CERTIFICATE DEFERRED PAYMENT WRITEDOWN AMOUNT: With respect
to any Distribution Date and the Class APO Certificates, the amount, if any,
distributed to the Class APO Certificates in respect of the Class APO
Certificate Deferred Amount on such Distribution Date pursuant to Section
5.04(b) which amount will be allocated to the Class B5, Class B4, Class B3,
Class B2, Class B1 and Class M Certificates, in that order, until the
Certificate Principal Balance of each such Class has been reduced to zero
pursuant to Section 5.04.
CLASS APO CERTIFICATE PRINCIPAL DISTRIBUTION AMOUNT: With respect to
each Distribution Date and the Class APO Certificates, an amount equal to the
sum of the following (but in no event greater than the aggregate Certificate
Principal Balance of the Class APO Certificates immediately prior to such
Distribution Date):
(i) the applicable PO Percentage of the principal portion of
all Scheduled Payments due on the related Discount Mortgage Loans on
the related Due Date, as specified in the amortization schedule at the
time applicable thereto (after adjustment for previous principal
prepayments but before giving effect to any Deficient Valuation or Debt
Service Reduction that occurred prior to the reduction of the
Bankruptcy Loss Coverage Amount to zero);
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(ii) the applicable PO Percentage of the Stated Principal
Balance of each related Discount Mortgage Loan which was the subject of
a Principal Prepayment in full received by the related Servicer during
the applicable Prepayment Period;
(iii) the applicable PO Percentage of all partial Principal
Prepayments received during the applicable Prepayment Period with
respect to any related Discount Mortgage Loan;
(iv) the lesser of (a) the applicable PO Percentage of the sum
of (A) all Net Liquidation Proceeds allocable to principal received in
respect of each related Discount Mortgage Loan which became a
Liquidated Loan during the related Prepayment Period (other than
Discount Mortgage Loans described in the immediately following clause
(B)) and (B) the Stated Principal Balance of each such related Discount
Mortgage Loan purchased by an insurer from the trustee during the
related Prepayment Period pursuant to the related Primary Mortgage
Insurance Policy, if any, or otherwise; and (b) the applicable PO
Percentage of the sum of (A) the Stated Principal Balance of each
related Discount Mortgage Loan which became a Liquidated Loan during
the related Prepayment Period (other than the related Discount Mortgage
Loans described in the immediately following clause (B)) and (B) the
Stated Principal Balance of each such related Discount Mortgage Loan
that was purchased by an insurer from the Trustee during the related
Prepayment Period pursuant to the related Primary Mortgage Insurance
Policy, if any or otherwise; and
(v) the applicable PO Percentage of the sum of (a) the Stated
Principal Balance of each related Discount Mortgage Loan which was
repurchased by the Seller in connection with such Distribution Date and
(b) the excess, if any, of the Stated Principal Balance of a Discount
Mortgage Loan that has been replaced by the Servicer with a Replacement
Mortgage Loan in connection with such Distribution Date over the Stated
Principal Balance of such Replacement Mortgage Loan.
CLASS B1 CERTIFICATE: Any Certificate designated as a "Class B1
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 B1 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS B1 PASS-THROUGH RATE: On any Distribution Date, a rate equal to
the weighted average of 5.50% per annum with respect to the Mortgage Loans in
Loan Group I, 6.00% per annum with respect to the Mortgage Loans in Loan Group
II, 6.50% per annum with respect to the Mortgage Loans in Loan Group III, 7.00%
per annum with respect to the Mortgage Loans in Loan Group IV, 7.00% per annum
with respect to the Mortgage Loans in Loan Group V, 7.00% per annum with respect
to the Mortgage Loans in Loan Group VI and 5.00% per annum with respect to the
Mortgage Loans in Loan Group VII, weighted on the basis of the Group Subordinate
Amount for each such Loan Group.
CLASS B2 CERTIFICATE: Any Certificate designated as a "Class B2
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 B2 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
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CLASS B-2 PASS-THROUGH RATE: On any Distribution Date, a rate equal to
the weighted average of 5.50% per annum with respect to the Mortgage Loans in
Loan Group I, 6.00% per annum with respect to the Mortgage Loans in Loan Group
II, 6.50% per annum with respect to the Mortgage Loans in Loan Group III, 7.00%
per annum with respect to the Mortgage Loans in Loan Group IV, 7.00% per annum
with respect to the Mortgage Loans in Loan Group V, 7.00% per annum with respect
to the Mortgage Loans in Loan Group VI and 5.00% per annum with respect to the
Mortgage Loans in Loan Group VII, weighted on the basis of the Group Subordinate
Amount for each such Loan Group.
CLASS B3 CERTIFICATE: Any Certificate designated as a "Class B3
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 B3 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS B3 PASS-THROUGH RATE: On any Distribution Date, a rate equal to
the weighted average of 5.50% per annum with respect to the Mortgage Loans in
Loan Group I, 6.00% per annum with respect to the Mortgage Loans in Loan Group
II, 6.50% per annum with respect to the Mortgage Loans in Loan Group III, 7.00%
per annum with respect to the Mortgage Loans in Loan Group IV, 7.00% per annum
with respect to the Mortgage Loans in Loan Group V, 7.00% per annum with respect
to the Mortgage Loans in Loan Group VI and 5.00% per annum with respect to the
Mortgage Loans in Loan Group VII, weighted on the basis of the Group Subordinate
Amount for each such Loan Group.
CLASS B4 CERTIFICATE: Any Certificate designated as a "Class B4
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 B4 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS B4 PASS-THROUGH RATE: On any Distribution Date, a rate equal to
the weighted average of 5.50% per annum with respect to the Mortgage Loans in
Loan Group I, 6.00% per annum with respect to the Mortgage Loans in Loan Group
II, 6.50% per annum with respect to the Mortgage Loans in Loan Group III, 7.00%
per annum with respect to the Mortgage Loans in Loan Group IV, 7.00% per annum
with respect to the Mortgage Loans in Loan Group V, 7.00% per annum with respect
to the Mortgage Loans in Loan Group VI and 5.00% per annum with respect to the
Mortgage Loans in Loan Group VII, weighted on the basis of the Group Subordinate
Amount for each such Loan Group.
CLASS B5 CERTIFICATE: Any Certificate designated as a "Class B5
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 B5 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS B5 PASS-THROUGH RATE: On any Distribution Date, a rate equal to
the weighted average of 5.50% per annum with respect to the Mortgage Loans in
Loan Group I, 6.00% per annum with respect to the Mortgage Loans in Loan Group
II, 6.50% per annum with respect to the Mortgage Loans in Loan Group III, 7.00%
per annum with respect to the Mortgage Loans in Loan Group IV, 7.00% per annum
with respect to the Mortgage Loans in Loan Group V, 7.00% per annum with respect
to the Mortgage Loans in Loan Group VI and 5.00% per annum with respect to the
Mortgage Loans in Loan Group VII, weighted on the basis of the Group Subordinate
Amount for each such Loan Group.
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CLASS M CERTIFICATE: Any Certificate designated as a "Class M
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 M Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS M PASS-THROUGH RATE: On any Distribution Date, a rate equal to
the weighted average of 5.50% per annum with respect to the Mortgage Loans in
Loan Group I, 6.00% per annum with respect to the Mortgage Loans in Loan Group
II, 6.50% per annum with respect to the Mortgage Loans in Loan Group III, 7.00%
per annum with respect to the Mortgage Loans in Loan Group IV, 7.00% per annum
with respect to the Mortgage Loans in Loan Group V, 7.00% per annum with respect
to the Mortgage Loans in Loan Group VI and 5.00% per annum with respect to the
Mortgage Loans in Loan Group VII, weighted on the basis of the Group Subordinate
Amount for each such Loan Group.
CLASS PREPAYMENT DISTRIBUTION TRIGGER: With respect to any Class of
Subordinated Certificates shall be satisfied on the Distribution Date on which
the fraction (expressed as a percentage), the numerator of which is the
aggregate Certificate Principal Balance of such Class and each Class subordinate
to such Class, if any, and the denominator of which is the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the related Due Date, equals or
exceeds such percentage calculated as of the Closing Date.
CLASS R CERTIFICATE: Any Certificate designated a "Class R Certificate"
on the face thereof, in substantially the form set forth in Exhibit A-7 hereto,
evidencing the Class R-1 Interest and Class R-2 Interest.
CLASS R-1 INTEREST: The uncertificated residual interest in REMIC I.
CLASS R-2 INTEREST: The uncertificated residual interest in REMIC II.
CLOSING DATE: April 29, 2003.
CODE: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COMPENSATING INTEREST: An amount, not to exceed the Servicing Fee, to
be deposited in the Distribution Account by the related Servicer to offset a
Prepayment Interest Shortfall on a Mortgage Loan subject to this Agreement.
CORPORATE TRUST OFFICE: The designated office of the Trustee where at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Institutional Trust Services/Structured Finance Services, Nomura
Asset Acceptance Corporation, Alternative Loan Trust, Series 2003-A1, or at such
other address as the Trustee may designate from time to time.
CORRESPONDING CERTIFICATE: With respect to: (i) REMIC I Regular
Interest LT-1IO, REMIC I Regular Interest LT-2IO, REMIC I Regular Interest
LT-3IO, REMIC I Regular Interest LT-4IO, REMIC
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I Regular Interest LT-5IO, REMIC I Regular Interest LT-6IO and REMIC I Regular
Interest LT-7IO, the Class AIO Certificates and (ii) REMIC I Regular Interest
LT-1PO, REMIC I Regular Interest LT-2PO, REMIC I Regular Interest LT-3PO, REMIC
I Regular Interest LT-4PO, REMIC I Regular Interest LT-5PO and REMIC I Regular
Interest LT-6PO, the Class APO Certificates.
CREDIT RISK MANAGEMENT AGREEMENT: The agreement between the Credit Risk
Manager and Option One, dated April 29, 2003.
CREDIT RISK MANAGEMENT FEE: As to each Mortgage Loan and any
Distribution Date, an amount equal to 1/12th of the Credit Risk Management Fee
Rate multiplied by the Stated Principal Balance of such Mortgage Loan as of the
last day of the related Due Period. The Credit Risk Management Fee shall be
payable to the Credit Risk Manager and/or the Seller pursuant to Section
4.07(vii) and 4.08(b).
CREDIT RISK MANAGEMENT FEE RATE: 0.015% per annum.
CREDIT RISK MANAGER: The Murrayhill Company, a Colorado corporation.
CROSS-OVER DATE: The first Distribution Date on which the aggregate
Certificate Principal Balance of the Subordinated Certificates has been reduced
to zero (giving effect to all distributions on such Distribution Date).
CUSTODIAL ACCOUNT: Each account established and maintained by the
related Servicer with respect to receipts on the Mortgage Loans and related REO
Property serviced by such Servicer in accordance with Section 4.01 hereof or in
accordance with the Servicing Agreement.
CUSTODIAL AGREEMENT: Shall mean either (i) the U.S. Bank Custodial
Agreement or (ii) the WMBFA Custodial Agreement, as applicable.
CUSTODIAL ASSIGNMENT: The Assignment, Assumption and Recognition
Agreement evidencing the assignment of the WMBFA Custodial Agreement to the
Trust.
CUSTODIAN: (i) with respect to the Option One Mortgage Loans identified
on Exhibit B-2 attached hereto, U.S. Bank, National Association and any
successor thereto pursuant to the U.S. Bank Custodial Agreement, (ii) with
respect to the remaining Option One Mortgage Loans, JPMorgan Chase Bank pursuant
to the terms of this Agreement and any successor thereto and (iii) with respect
to the WMBFA Mortgage Loans, WMBFA and any successor thereto pursuant to the
WMBFA Custodial Agreement.
CUT-OFF DATE: April 1, 2003.
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
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received, but without giving effect to any installments of principal received in
respect of Due Dates after the Cut-off Date.
DEBT SERVICE REDUCTION: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan that became final and
non-appealable, except such a reduction resulting from a Deficient Valuation or
any other reduction that results in a permanent forgiveness of principal.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under such Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any Scheduled
Payment that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court that is final and non-appealable
in a proceeding under the Bankruptcy Code.
DEFINITIVE CERTIFICATES: As defined in Section 6.06.
DELETED MORTGAGE LOAN: A Mortgage Loan replaced or to be replaced by a
Replacement Mortgage Loan.
DELINQUENT: A Mortgage Loan is "delinquent" if any payment due thereon
is not made pursuant to the terms of such Mortgage Loan by the close of business
on the day such payment is scheduled to be due. A Mortgage Loan is "30 days
delinquent" if such payment has not been received by the close of business on
the corresponding day of the month immediately succeeding the month in which
such payment was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on the 31st day
of such month), then on the last day of such immediately succeeding month.
Similarly for "60 days delinquent," "90 days delinquent" and so on.
DENOMINATION: With respect to each Certificate, the amount set forth on
the face thereof as the "Initial Principal Balance of this Certificate".
DEPOSITOR: Nomura Asset Acceptance Corporation, a Delaware corporation,
or its successor in interest.
DEPOSITORY: The initial Depository shall be The Depository Trust
Company ("DTC"), the nominee of which is Cede & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York.
DEPOSITORY AGREEMENT: With respect to the Class of Book-Entry
Certificates, the agreement among the Depositor, the Trustee and the initial
Depository, dated as of the Closing Date, substantially in the form of Exhibit
I.
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DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DETERMINATION DATE: With respect to any Distribution Date, the 15th day
of the month of such Distribution Date or, if such 15th day is not a Business
Day, the immediately preceding Business Day.
DISCOUNT MORTGAGE LOAN: (a) any Mortgage Loan in Loan Group I with a
Net Mortgage Rate less than 5.50% per annum, (b) any Mortgage Loan in Loan Group
II with a Net Mortgage Rate less than 6.00% per annum, (c) any Mortgage Loan in
Loan Group III with a Net Mortgage Rate less than 6.50% per annum, (d) any
Mortgage Loan in Group IV with a Net Mortgage Rate less than 7.00%, (e) any
Mortgage Loan in Group V with a Net Mortgage Rate less than 7.00% and (f) any
Mortgage Loan in Group VI with a Net Mortgage Rate less than 7.00% per annum.
DISTRIBUTION ACCOUNT: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06 in the name of the Trustee
for the benefit of the Certificateholders and designated "JPMorgan Chase Bank,
in trust for registered holders of Nomura Asset Acceptance Corp., Mortgage
Pass-Through Certificates, Series 2003-A1". Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
DISTRIBUTION DATE: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business Day,
the next succeeding Business Day, commencing in May 2003.
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, (a) with respect to
the Option One Mortgage Loans, the period from the second day of the calendar
month preceding the calendar month in which such Distribution Date occurs
through close of business on the first day of the calendar month in which such
Distribution Date occurs and (b) with respect to the WMBFA Mortgage Loans, the
calendar month immediately preceding the 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
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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. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
ESCROW ACCOUNT: Shall mean the account maintained by Option One
pursuant to Section 4.04 hereof. The Escrow Account shall be an Eligible
Account.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA RESTRICTED CERTIFICATE: Each of the Class B3, Class B4, Class B5
and Residual Certificates.
EXCESS LIQUIDATION PROCEEDS: To the extent not required by law to be
paid to the related Mortgagor, the excess, if any, of any Liquidation Proceeds
with respect to a Mortgage Loan over the Stated Principal Balance of such
Mortgage Loan and accrued and unpaid interest at the related Mortgage Rate
through the last day of the month in which the Mortgage Loan has been
liquidated.
EXCESS LOSS: A Deficient Valuation, Fraud Loss or Special Hazard Loss
or any part thereof, occurring after the Bankruptcy Loss Coverage Amount, Fraud
Loss Coverage Amount or Special Hazard Loss Coverage Amount, respectively, has
been reduced to zero.
EXEMPTION: Prohibited Transaction Exemption 93-32, as amended from time
to time.
XXXXXX XXX: Xxxxxx Xxx (formerly, Federal National Mortgage
Association), or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FINAL CERTIFICATION: The certification of the applicable Custodian in
the form attached hereto as Exhibit C-3 or in the form attached to the
applicable Custodial Agreement.
FINAL RECOVERY DETERMINATION: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by the Seller or the Depositor pursuant to or as contemplated by Section 2.03(c)
or Section 10.01), a determination made by the applicable Servicer pursuant to
this Agreement or the Servicing Agreement 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. The Trustee shall maintain records, based solely
on information provided by each Servicer, of each Final Recovery Determination
made thereby.
FRAUD LOSS: A Loss on a Mortgage Loan as to which there was fraud in
the origination thereof.
FRAUD LOSS COVERAGE AMOUNT: With respect to the period beginning (i) on
the Closing Date and ending on December 31, 2003, $4,215,411.46 , (ii) on
January 1, 2004 and ending on December 31,
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2005, $2,107,705.73 minus the aggregate amount of Fraud Losses that would have
been allocated to the Subordinated Certificates in the absence of the Loss
Allocation Limitation since the Cut-Off Date and (iii) after the earlier to
occur of January 1, 2006 and the Cross-Over Date, $0.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
FITCH: Fitch Ratings, or its successor in interest.
XXXXXXX MAC: Federal Home Loan Mortgage Corporation, or any successor
thereto.
GROUP I AVAILABLE FUNDS: Shall mean the sum of Interest Funds and
Principal Funds relating to Loan Group I.
GROUP II AVAILABLE FUNDS: Shall mean the sum of Interest Funds and
Principal Funds relating to Loan Group II.
GROUP III AVAILABLE FUNDS: Shall mean the sum of Interest Funds and
Principal Funds relating to Loan Group III.
GROUP IV AVAILABLE FUNDS: Shall mean the sum of Interest Funds and
Principal Funds relating to Loan Group IV.
GROUP V AVAILABLE FUNDS: Shall mean the sum of Interest Funds and
Principal Funds relating to Loan Group V.
GROUP VI AVAILABLE FUNDS: Shall mean the sum of Interest Funds and
Principal Funds relating to Loan Group VI.
GROUP VII AVAILABLE FUNDS: Shall mean the sum of Interest Funds and
Principal Funds relating to Loan Group VII.
GROUP SUBORDINATE AMOUNT: As to any Distribution Date, with respect to
any Loan Group, the amount equal to the excess of the aggregate Stated Principal
Balance of the Mortgage Loans in such Loan Group over the aggregate Certificate
Principal Balance of the related Senior Certificates (other than the Class AIO
Certificates) and the applicable portion of the Class APO Certificates.
INDEMNIFIED PERSONS: The Trustee, the Servicers (including any
Successor Servicer), the Custodians, the Trust Fund and their officers,
directors, agents and employees and, with respect to the Trustee, any separate
co-trustee and its officers, directors, agents and employees.
INITIAL CERTIFICATE PRINCIPAL BALANCE: With respect to any Certificate
(other than the Class AIO Certificates), the Certificate Principal Balance of
such Certificate or any predecessor Certificate on the Closing Date.
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INITIAL CERTIFICATION: The certification of the applicable Custodian in
the form attached hereto as Exhibit C-1 or in the form attached to the
applicable Custodial Agreement.
INSURANCE POLICY: With respect to any Mortgage Loan included in the
Trust Fund, the PMI Policy, any other insurance policy (including any other LPMI
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 the servicing standard set forth in the Servicing Agreement, as
applicable, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
INSURED EXPENSES: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
INTEREST ACCRUAL PERIOD: With respect to the Certificates and any
Distribution Date, the calendar month immediately preceding such Distribution
Date. All calculations of interest on the Certificates will be made on the basis
of a 360-day year consisting of twelve 30-day months.
INTEREST FUNDS: For any Distribution Date with respect to each Loan
Group, (i) the sum, without duplication, of (a) all scheduled interest during
the related Due Period with respect to the related Mortgage Loans less the
Servicing Fee, the Credit Risk Management Fee and the LPMI Fee, if any, (b) all
Advances relating to interest with respect to the related Mortgage Loans made on
or prior to the related Remittance Date, (c) all Compensating Interest with
respect to the related Mortgage Loans and required to be remitted by the related
Servicer pursuant to this Agreement or the Servicing Agreement with respect to
such Distribution Date, (d) Liquidation Proceeds with respect to the related
Mortgage Loans collected during the related Prepayment Period (to the extent
such Liquidation Proceeds relate to interest), (e) all amounts relating to
interest with respect to each Mortgage Loan repurchased by the Seller pursuant
to Sections 2.02 and 2.03 and (f) all amounts in respect of interest paid by the
Depositor pursuant to Section 10.01, in each case to the extent remitted by the
related Servicer, to the Distribution Account pursuant to this Agreement or the
Servicing Agreement minus (ii) all amounts relating to interest required to be
reimbursed pursuant to Sections 4.02, 4.04, 4.06, 4.07 and 9.05 or as otherwise
set forth in this Agreement.
INTEREST SHORTFALL: With respect to any Distribution Date, means 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) the partial Principal Prepayments received during the related Prepayment
Period to the extent applied prior to the Due Date in the month of the
Distribution Date and (c) interest payments on certain of the Mortgage Loans
being limited pursuant to the provisions of the Relief Act.
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INTERIM CERTIFICATION: The certification of the applicable Custodian in
the form attached hereto as Exhibit C-3 or in the form attached to the
applicable Custodial Agreement.
LAST SCHEDULED DISTRIBUTION DATE: With respect to (i) the Class A1,
Class A2, Class A4, Class AIO, Class APO, Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5 Certificates, May 25, 2033, (ii) the Class A3 Certificates
and Class A5 Certificates, Xxxxx 00, 0000, (xxx) the Class A6 Certificates, May
1, 2018 and (iv) the Class A7 Certificates, April 25, 2018.
LATEST POSSIBLE MATURITY DATE: The Distribution Date following the
final scheduled maturity date of the Mortgage Loan in the Trust Fund having the
latest scheduled maturity date as of the Cut- off Date. For purposes of the
Treasury Regulations under Code section 860A through 860G, the latest possible
maturity date of each regular interest issued by REMIC I and REMIC II shall be
the Latest Possible Maturity Date.
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 that it has received all amounts it expects to receive in
connection with such liquidation.
LIQUIDATION PROCEEDS: Amounts, other than Insurance Proceeds, received
in connection with the partial or complete liquidation of a Mortgage Loan,
whether through trustee's sale, foreclosure sale or otherwise, or in connection
with any condemnation or partial release of a Mortgaged Property and any other
proceeds received with respect to an REO Property, less the sum of related
unreimbursed Advances, Servicing Fees and Servicing Advances and all expenses of
liquidation, including property protection expenses and foreclosure and sale
costs, including court and reasonable attorneys fees.
LOAN GROUP: Any of Loan Group I, Loan Group II, Loan Group III, Loan
Group IV, Loan Group V, Loan Group VI or Loan Group VII.
LOAN GROUP I: The Mortgage Loans identified as such on the Mortgage
Loan Schedule.
LOAN GROUP II: The Mortgage Loans identified as such on the Mortgage
Loan Schedule.
LOAN GROUP III: The Mortgage Loans identified as such on the Mortgage
Loan Schedule.
LOAN GROUP IV: The Mortgage Loans identified as such on the Mortgage
Loan Schedule.
LOAN GROUP V: The Mortgage Loans identified as such on the Mortgage
Loan Schedule.
LOAN GROUP VI: The Mortgage Loans identified as such on the Mortgage
Loan Schedule.
LOAN GROUP VII: The Mortgage Loans identified as such on the Mortgage
Loan Schedule.
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LOAN-TO-VALUE RATIO: The fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Mortgage
Loan and the denominator of which is the Appraised Value of the related
Mortgaged Property.
LOSS ALLOCATION LIMITATION: The meaning specified in Section 5.05(c)
hereof.
LPMI FEE: Shall mean the fee payable to the insurer for each Mortgage
Loan subject to an LPMI Policy as set forth in such LPMI Policy.
LPMI POLICY: A policy of mortgage guaranty insurance issued by an
insurer meeting the requirements of Xxxxxx Xxx and Xxxxxxx Mac under which the
related Servicer is responsible for the payment of the LPMI Fee thereunder from
collections on the related Mortgage Loan.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) SYSTEM: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS(R) System.
MOM LOAN: Any Mortgage Loan as to which MERS is acting as the mortgagee
of such Mortgage Loan, solely as nominee for the originator of such Mortgage
Loan and its successors and assigns, at the origination thereof.
MONTHLY STATEMENT: The statement delivered to the Certificateholders
pursuant to Section 5.06.
MORTGAGE: The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest in an estate in fee simple in
real property securing a Mortgage Note.
MORTGAGE FILE: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents delivered to the
Trustee to be added to the Mortgage File pursuant to this Agreement.
MORTGAGE LOANS: Such of the Mortgage Loans transferred and assigned to
the Trustee pursuant to the provisions hereof, as from time to time are held as
a part of the Trust Fund (including any REO Property), the mortgage loans so
held being identified in the Mortgage Loan Schedule, notwithstanding foreclosure
or other acquisition of title of the related Mortgaged Property.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase Agreement
dated as of April 29, 2003, between the Seller, as seller and the Depositor, as
purchaser.
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MORTGAGE LOAN PURCHASE PRICE: The price, calculated as set forth in
Section 10.01, to be paid in connection with the repurchase of the Mortgage
Loans pursuant to Section 10.01.
MORTGAGE LOAN SCHEDULE: The list of Mortgage Loans (as from time to
time amended by the related Servicer to reflect the deletion of Deleted Mortgage
Loans and the addition of Replacement Mortgage Loans pursuant to the provisions
of this Agreement) transferred to the Trustee as part of the Trust Fund and from
time to time subject to this Agreement, the initial Mortgage Loan Schedule being
attached hereto as Exhibit B-1, setting forth the following information with
respect to each Mortgage Loan and divided into Loan Groups:
(i) the loan 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 MIN with respect to each Mortgage Loan;
(xii) the Loan Group;
(xiii) the applicable Servicer; and
(xiv) the applicable Custodian.
Such schedule shall also set forth the aggregate Cut-off Date Principal Balance
for all of the Mortgage Loans and such aggregate amount for all Mortgage Loans
for each Loan Group.
MORTGAGE NOTE: The original executed note or other evidence of
indebtedness of a Mortgagor under a Mortgage Loan.
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MORTGAGE RATE: The annual rate of interest borne by a Mortgage Note.
MORTGAGED PROPERTY: The underlying property securing a Mortgage Loan.
MORTGAGOR: The obligors on a Mortgage Note.
NET INTEREST SHORTFALLS: Shall mean Interest Shortfalls net of payments
by the related Servicer in respect of Compensating Interest.
NET MORTGAGE RATE: As to each Mortgage Loan, and at any time, the per
annum rate equal to the related Mortgage Rate less the sum of (i) the Servicing
Fee Rate, (ii) the Credit Risk Management Fee Rate and (iii) PMI Insurer Fee
Rate, if applicable.
NON-BOOK-ENTRY CERTIFICATE: Any Certificate other than a Book-Entry
Certificate.
NON-DISCOUNT MORTGAGE LOANS: Shall mean (a) any Mortgage Loan in Loan
Group I with a Net Mortgage Rate greater than or equal to 5.50%, (b) any
Mortgage Loan in Loan Group II with a Net Mortgage Rate greater than or equal to
6.00% per annum, (c) any Mortgage Loan in Loan Group III with a Net Mortgage
Rate greater than or equal to 6.50% per annum, (d) any Mortgage Loan in Loan
Group IV with a Net Mortgage Rate greater than or equal to 7.00% per annum, (e)
any Mortgage Loan in Loan Group V with a Net Mortgage Rate greater than or equal
to 7.00% per annum, (f) any Mortgage Loan in Loan Group VI with a Net Mortgage
Rate greater than or equal to 7.00% per annum and (g) any Mortgage Loan in Loan
Group VII.
NON-EXCESS LOSS: Any Realized Loss other than an Excess Loss.
NON-PO PERCENTAGE: Shall mean, (a) with respect to Loan Group I and (i)
any related Discount Mortgage Loan, the Net Mortgage Rate thereof divided by
5.50% and (ii) any related Non-Discount Mortgage Loan, 100%, (b) with respect to
Loan Group II and (i) any related Discount Mortgage Loan, the Net Mortgage Rate
thereof divided by 6.00% and (ii) any related Non-Discount Mortgage Loan, 100%,
(c) with respect to Loan Group III and (i) any related Discount Mortgage Loan,
the Net Mortgage Rate thereof divided by 6.50% and (ii) any related Non-Discount
Mortgage Loan, 100%, (d) with respect to Loan Group IV and (i) any related
Discount Mortgage Loan, the Net Mortgage Rate thereof divided by 7.00% and (ii)
any related Non-Discount Mortgage Loan, 100%, (e) with respect to Loan Group V
and (i) any related Discount Mortgage Loan, the Net Mortgage Rate thereof
divided by 7.00% and (ii) any related Non-Discount Mortgage Loan, 100%, (f) with
respect to Loan Group VI and (i) any related Discount Mortgage Loan, the Net
Mortgage Rate thereof divided by 7.00% and (ii) any related Non-Discount
Mortgage Loan, 100% and (g) with respect to Loan Group VII, 100%.
NONRECOVERABLE ADVANCE: Any portion of an Advance or Servicing Advance
previously made or proposed to be made by the related Servicer or the Trustee as
Successor Servicer pursuant to this Agreement or the Servicing Agreement, that,
in the good faith judgment of the related Servicer or the Trustee as Successor
Servicer, will not or, in the case of a proposed Advance or Servicing Advance,
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would not, be ultimately recoverable by it from the related Mortgagor, related
Liquidation Proceeds, Insurance Proceeds or otherwise.
NOTIONAL BALANCE: As to any Class AIO Certificate and any Distribution
Date, the aggregate Stated Principal Balance of the Mortgage Loans.
OFFERED CERTIFICATES: The Class A1, Class A2, Class A3, Class A4, Class
A5, Class A6, Class A7, Class AIO, Class APO, Class M, Class B1 and Class B2
Certificates.
OFFICER'S CERTIFICATE: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Vice President (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or one
of the assistant treasurers or assistant secretaries of the Depositor or the
Trustee (or any other officer customarily performing functions similar to those
performed by any of the above designated officers and also to whom, with respect
to a particular matter, such matter is referred because of such officer's
knowledge of and familiarity with a particular subject) or (ii), if provided for
in this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor, the Seller and/or the Trustee, as the case may be,
as required by this Agreement.
OPINION OF COUNSEL: A written opinion of counsel, who may be counsel
for the Seller, 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 Seller, Depositor and the related
Servicer, (ii) not have any direct financial interest in the Seller, Depositor
or the related Servicer or in any affiliate of either, and (iii) not be
connected with the Seller, Depositor or the related Servicer as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
OPTION ONE: Option One Mortgage Corporation in its capacity as a
Servicer hereunder.
OPTION ONE MORTGAGE LOANS: Shall mean those Mortgage Loans serviced by
Option One pursuant to the terms of this Agreement.
OPTIONAL TERMINATION: The termination of the Trust Fund created
hereunder as a result of the purchase of all of the Mortgage Loans and any REO
Property pursuant to the last sentence of Section 10.01 hereof.
ORIGINAL VALUE: With respect to a Mortgage Loan, the value of the
Mortgaged Property based, in the case of the purchase of the Mortgaged Property,
on the lower of an appraisal or the sales price of such Mortgaged Property or,
in the case of a refinancing, on an appraisal.
OTS: The Office of Thrift Supervision.
OUTSTANDING: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
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(a) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(b) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
OUTSTANDING MORTGAGE LOAN: As of any date of determination, a Mortgage
Loan with a Stated Principal Balance greater than zero that was not the subject
of a Principal Prepayment in full, and that did not become a Liquidated Loan,
prior to the end of the related Prepayment Period.
OWNERSHIP INTEREST: As to any Certificate, any ownership interest in
such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
PASS-THROUGH RATE: With respect to each Class of Certificates, the
applicable Pass-Through Rate for each Class as set forth in the Preliminary
Statement.
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 the such Class.
PERMITTED INVESTMENTS: At any time, any one or more of the following
obligations and securities:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency thereof, provided such obligations are 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;
(iii) [Reserved];
(iv) commercial or finance company paper which is then
receiving the highest commercial or finance company paper rating of
each Rating Agency, or such lower rating as will not result in the
downgrading or withdrawal of the ratings then assigned to the
Certificates by each Rating Agency;
(v) certificates of deposit, demand or time deposits, or
bankers' acceptances issued by any depository institution or trust
company incorporated under the laws of the United States or of any
state thereof and subject to supervision and examination by federal
and/or state banking authorities (including the Trustee in its
commercial banking capacity), provided that the commercial
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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;
(vi) demand or time deposits or certificates of deposit issued
by any bank or trust company or savings institution to the extent that
such deposits are fully insured by the FDIC;
(vii) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the
issuance of such agreements, such terms and conditions as will not
result in the downgrading or withdrawal of the rating then assigned to
the Certificates by any such Rating Agency;
(viii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (v) above;
(ix) securities (other than stripped bonds, stripped coupons
or instruments sold at a purchase price in excess of 115% of the face
amount thereof) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any
state thereof which, at the time of such investment, have one of the
two highest long term ratings of each Rating Agency, or such lower
rating as will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by any Rating Agency, as
evidenced by a signed writing delivered by each Rating Agency;
(x) units of money market funds registered under the
Investment Company Act of 1940 including funds managed or advised by
the Trustee or an affiliate thereof having a rating by S&P of AAA-G,
AAA-m, or AA-m, and if rated by Xxxxx'x Investors Service, Inc., rated
Aaa, Aa1 or Aa2;
(xi) short term investment funds sponsored by any trust
company or banking association incorporated under the laws of the
United States or any state thereof (including any such fund managed or
advised by the Trustee or any affiliate thereof) which on the date of
acquisition has been rated by each Rating Agency in their respective
highest applicable rating category or such lower rating as will not
result in the downgrading or withdrawal of the ratings then assigned to
the Certificates by each Rating Agency; and
(xii) such other investments having a specified stated
maturity and bearing interest or sold at a discount acceptable to each
Rating Agency as will not result in the downgrading or withdrawal of
the rating then assigned to the Certificates by any Rating Agency, as
evidenced by a signed writing delivered by each Rating Agency;
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provided, that no such instrument shall be a Permitted Investment if such
instrument (i) evidences the right to receive interest only payments with
respect to the obligations underlying such instrument, (ii) is purchased at a
premium or (iii) is purchased at a deep discount; provided further that no such
instrument shall be a Permitted Investment (A) if such instrument evidences
principal and interest payments derived from obligations underlying such
instrument and the interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (B) if it may be redeemed at a price below the
purchase price (the foregoing clause (B) not to apply to investments in units of
money market funds pursuant to clause (vii) above); provided further that no
amount beneficially owned by any REMIC may be invested in investments (other
than money market funds) treated as equity interests for federal income tax
purposes, unless the applicable Servicer or the Trustee, as applicable, shall
receive an Opinion of Counsel, at the expense of the applicable Servicer or the
Trustee, as applicable, to the effect that such investment will not adversely
affect the status of any such REMIC as a REMIC under the Code or result in
imposition of a tax on any such REMIC. Permitted Investments that are subject to
prepayment or call may not be purchased at a price in excess of par.
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 REMIC I or
REMIC II 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.
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PMI INSURER: Radian Guaranty Inc., a Pennsylvania corporation, or its
successors in interest.
PMI INSURER FEE: The amount payable to the PMI Insurer on each
Distribution Date, which amount shall equal one twelfth of the product of (i)
the PMI Insurer Fee Rate, multiplied by (ii) the aggregate Principal Balance of
the PMI Mortgage Loans and any related REO Properties as of the first day of the
related Due Period (after giving effect to scheduled payments of principal due
during the Due Period relating to the previous Distribution Date, to the extent
received or advanced) plus any applicable premium taxes on PMI Mortgage Loans
secured by Mortgaged Properties located in West Virginia and Kentucky.
PMI INSURER FEE RATE: 0.93% per annum.
PMI MORTGAGE LOANS: The list of Mortgage Loans insured by the PMI
Insurer attached hereto as Schedule I.
PMI POLICY: The Primary Mortgage Insurance Policy No. 28424 (policy
reference number: 02-998063) with respect to the PMI Mortgage Loans, including
all endorsements thereto dated the Closing Date, issued by the PMI Insurer and
the Commitment Letter, dated April 29, 2003, between the PMI Insurer and the
Seller.
PO PERCENTAGE: Shall mean, (a) with respect to Loan Group I and any
related Discount Mortgage Loan a fraction, expressed as a percentage, equal to
5.50% minus the Net Mortgage Rate thereof divided by 5.50%, (b) with respect to
Loan Group II and any related Discount Mortgage Loan a fraction, expressed as a
percentage, equal to 6.00% minus the Net Mortgage Rate thereof divided by 6.00%,
(c) with respect to Loan Group III and any related Discount Mortgage Loan a
fraction, expressed as a percentage, equal to 6.50% minus the Net Mortgage Rate
thereof divided by 6.50%, (d) with respect to Loan Group IV and any related
Discount Mortgage Loan a fraction, expressed as a percentage, equal to 7.00%
minus the Net Mortgage Rate thereof divided by 7.00%, (e) with respect to Loan
Group V and any related Discount Mortgage Loan a fraction, expressed as a
percentage, equal to 7.00% minus the Net Mortgage Rate thereof divided by 7.00%
and (f) with respect to Loan Group VI and any related Discount Mortgage Loan a
fraction, expressed as a percentage, equal to 7.00% minus the Net Mortgage Rate
thereof divided by 7.00%.
PREPAYMENT ASSUMPTION: The assumed rate of prepayment, as described in
the Prospectus Supplement relating to each Class of Offered Certificates.
PREPAYMENT INTEREST SHORTFALL: With respect to any Distribution Date,
for each Mortgage Loan that was the subject of a Principal Prepayment in full
during the related Prepayment Period, (other than a Principal Prepayment in full
resulting from the purchase of a Mortgage Loan pursuant to Section 2.02, 2.03,
3.26 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 LPMI Fee, if any and (c) the PMI
Insurer Fee, if applicable.
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PREPAYMENT PERIOD: As to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs.
PRIMARY MORTGAGE INSURANCE POLICY: Any primary mortgage guaranty
insurance policy issued in connection with a Mortgage Loan which provides
compensation to a Mortgage Note holder in the event of default by the obligor
under such Mortgage Note or the related security instrument, if any, or any
replacement policy therefor through the related Interest Accrual Period for such
Class relating to a Distribution Date.
PRINCIPAL FUNDS: With respect to any Distribution Date, (i) the sum,
without duplication, of (a) all scheduled principal collected during the related
Due Period, (b) all Advances relating to principal made on or prior to the
Distribution Account Deposit Date or, with respect to the Trustee on the
Distribution Date, (c) Principal Prepayments exclusive of prepayment charges or
penalties collected during the related Prepayment Period, (iii) the Stated
Principal Balance of each Mortgage Loan that was repurchased by the Seller
pursuant to Sections 2.02, 2.03 and 3.26, (d) the aggregate of all Substitution
Adjustment Amounts for the related Determination Date in connection with the
substitution of Mortgage Loans pursuant to Section 2.03(b), (e) amounts in
respect of principal paid by the Trustee pursuant to Section 10.01, (f) all
Liquidation Proceeds collected during the related Prepayment Period (to the
extent such Liquidation Proceeds relate to principal), in each case to the
extent remitted by the related Servicer to the Distribution Account pursuant to
this Agreement or the Servicing Agreement and (g) all Subsequent Recoveries
minus (ii) all amounts required to be reimbursed pursuant to Sections 4.02, 4.05
and 4.07 and 5.08 or as otherwise set forth in this Agreement.
PRINCIPAL PREPAYMENT: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a Mortgage Loan (including loans
purchased or repurchased under Sections 2.02, 2.03, 3.26 and 10.01 hereof) that
is received in advance of its scheduled Due Date and is not accompanied by an
amount as to interest representing scheduled interest due on any Due Date in any
month or months subsequent to the month of prepayment. Partial Principal
Prepayments shall be applied by the related Servicer in accordance with the
terms of the related Mortgage Note.
PRIVATE CERTIFICATE: Each of the Class P, Class B3, Class B4, Class B5
and Class R Certificates.
PROSPECTUS SUPPLEMENT: The Prospectus Supplement dated April 29, 2003
relating to the public offering of the Offered Certificates.
PUD: A Planned Unit Development.
PURCHASE PRICE: With respect to any Mortgage Loan required to be
repurchased by the Seller pursuant to Section 2.02 or 2.03 hereof and as
confirmed by an Officer's Certificate from the Seller to the Trustee, an amount
equal to the sum of (i) 100% of the outstanding principal balance of the
Mortgage Loan as of the date of such purchase plus (ii) accrued interest thereon
at the applicable Mortgage Rate through the first day of the month in which the
Purchase Price is to be distributed to Certificateholders, reduced by any
portion of the Servicing Fee, Servicing Advances and Advances payable to the
purchaser of the
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Mortgage Loan plus (iii) any costs and damages of the Trust Fund, including any
expenses incurred by the Trustee with respect to such Mortgage Loan prior to the
purchase thereof.
RATING AGENCY: Each of Fitch 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 (v) the proceeds, if
any, received in respect of such Mortgage Loan during the calendar month in
which such Final Recovery Determination was made, net of amounts that are
payable therefrom to the related Servicer pursuant to this Agreement or the
Servicing Agreement, as applicable.
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.
Realized Loss shall also include any Excess Loss.
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RECORD DATE: With respect to the Certificates and any Distribution
Date, the close of business on the last Business Day of the month preceding the
month in which such Distribution Date occurs.
REGULAR CERTIFICATE: Any Certificate other than a Residual Certificate.
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended, or any similar state law.
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC I: The segregated pool of assets described in Section 5.07(a).
REMIC I CERTIFICATES: The REMIC I Regular Interests and the Class R-1
Certificate.
REMIC I REGULAR INTEREST LTI-1SUB: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-1SUB shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-1IO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-1IO shall accrue
interest at the related Uncertificated REMIC I Pass- Through Rate in effect from
time to time, and shall not be entitled to distributions of principal.
REMIC I REGULAR INTEREST LT-1PO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-1PO shall not accrue
interest and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-1ZZZ: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-1ZZZ shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-2SUB: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-2SUB shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect
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from time to time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-2IO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-2IO shall accrue
interest at the related Uncertificated REMIC I Pass- Through Rate in effect from
time to time, and shall not be entitled to distributions of principal.
REMIC I REGULAR INTEREST LT-2PO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-2PO shall not accrue
interest and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-1ZZZ: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-1ZZZ shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-3SUB: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-3SUB shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-3IO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-3IO shall accrue
interest at the related Uncertificated REMIC I Pass- Through Rate in effect from
time to time, and shall not be entitled to distributions of principal.
REMIC I REGULAR INTEREST LT-3PO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-3PO shall not accrue
interest and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-3ZZZ: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-3ZZZ shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect
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from time to time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-4SUB: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-4SUB shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-4IO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-4IO shall accrue
interest at the related Uncertificated REMIC I Pass- Through Rate in effect from
time to time, and shall not be entitled to distributions of principal.
REMIC I REGULAR INTEREST LT-4PO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-4PO shall not accrue
interest and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-4ZZZ: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-4ZZZ shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-5SUB: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-5SUB shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-5IO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-5IO shall accrue
interest at the related Uncertificated REMIC I Pass- Through Rate in effect from
time to time, and shall not be entitled to distributions of principal.
REMIC I REGULAR INTEREST LT-5PO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular
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Xxxxxxxx XX-0XX shall not accrue interest and shall be entitled to distributions
of principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
REMIC I REGULAR INTEREST LT-5ZZZ: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-5ZZZ shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-6SUB: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-6SUB shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-6IO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-6IO shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall not be entitled to distributions of principal.
REMIC I REGULAR INTEREST LT-6PO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-6PO shall not accrue
interest and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-6ZZZ: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-6ZZZ shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTEREST LT-7SUB: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-7SUB shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
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REMIC I REGULAR INTEREST LT-7IO: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-7IO shall accrue
interest at the related Uncertificated REMIC I Pass- Through Rate in effect from
time to time, and shall not be entitled to distributions of principal.
REMIC I REGULAR INTEREST LT-7ZZZ: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LT-7ZZZ shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC I REGULAR INTERESTS: REMIC I Regular Interest LT-1SUB, REMIC I
Regular Interest LT-1IO, REMIC I Regular Interest LT-1PO, REMIC I Regular
Interest LT-1ZZZ, REMIC I Regular Interest LT-2SUB, REMIC I Regular Interest
LT-2IO, REMIC I Regular Interest LT-2PO, REMIC I Regular Interest LT-2ZZZ, REMIC
I Regular Interest LT-3SUB, REMIC I Regular Interest LT- 3IO, REMIC I Regular
Interest LT-3PO, REMIC I Regular Interest LT-3ZZZ, REMIC I Regular Interest
LT-4SUB, REMIC I Regular Interest LT-4IO, REMIC I Regular Interest LT-4PO, REMIC
I Regular Interest LT-4ZZZ, REMIC I Regular Interest LT-5SUB, REMIC I Regular
Interest LT- 5IO, REMIC I Regular Interest LT-5PO, REMIC I Regular Interest
LT-5ZZZ, REMIC I Regular Interest LT-6SUB, REMIC I Regular Interest LT-6IO,
REMIC I Regular Interest LT-6PO, REMIC I Regular Interest LT-6ZZZ, REMIC I
Regular Interest LT-7SUB, REMIC I Regular Interest LT-7IO and REMIC I Regular
Interest LT-7ZZZ.
REMIC I SUBORDINATED BALANCE RATIO: The ratio among the Uncertificated
Principal Balances of each of the REMIC I Regular Interests ending with the
designation "SUB," equal to the ratio among:
(1) the excess of (x) the aggregate Scheduled Principal Balance of the
Mortgage Loans in Loan Group I over (y) the Certificate Principal Balance of the
Senior Certificates (other than the Class AIO Certificates and Class APO
Certificates) and the applicable portion of the Class APO Certificates related
to Loan Group I;
(2) the excess of (x) the aggregate Scheduled Principal Balance of the
Mortgage Loans in Loan Group II over (y) the Certificate Principal Balance of
the Senior Certificates (other than the Class AIO Certificates and Class APO
Certificates) and the applicable portion of the Class APO Certificates related
to Loan Group II;
(3) the excess of (x) the aggregate Scheduled Principal Balance of the
Mortgage Loans in Loan Group III over (y) the Certificate Principal Balance of
the Senior Certificates (other than the Class AIO Certificates and Class APO
Certificates) and the applicable portion of the Class APO Certificates related
to Loan Group III;
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(4) the excess of (x) the aggregate Scheduled Principal Balance of the
Mortgage Loans in Loan Group IV over (y) the Certificate Principal Balance of
the Senior Certificates (other than the Class AIO Certificates and Class APO
Certificates) and the applicable portion of the Class APO Certificates related
to Loan Group IV;
(5) the excess of (x) the aggregate Scheduled Principal Balance of the
Mortgage Loans in Loan Group V over (y) the Certificate Principal Balance of the
Senior Certificates (other than the Class AIO Certificates and Class APO
Certificates) and the applicable portion of the Class APO Certificates related
to Loan Group V;
(6) the excess of (x) the aggregate Scheduled Principal Balance of the
Mortgage Loans in Loan Group VI over (y) the Certificate Principal Balance of
the Senior Certificates (other than the Class AIO Certificates and Class APO
Certificates) and the applicable portion of the Class APO Certificates related
to Loan Group VI; and
(7) the excess of (x) the aggregate Scheduled Principal Balance of the
Mortgage Loans in Loan Group VII over (y) the Certificate Principal Balance of
the Senior Certificates (other than the Class AIO Certificates and Class APO
Certificates) and the applicable portion of the Class APO Certificates related
to Loan Group VII.
REMIC II: The segregated pool of assets described in the Preliminary
Statement, consisting of the REMIC I Regular Interests.
REMIC II CERTIFICATES: The Regular Interests and the Class R
Certificates.
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: A REMIC I Regular Interest or Regular
Certificate.
REMITTANCE DATE: Shall mean (i) with respect to Option One, the 18th
day of the month and if such day is not a Business Day, the immediately
preceding Business Day and (ii) with respect to WMBFA, the date specified in the
Servicing Agreement.
REO PROPERTY: A Mortgaged Property acquired by the related Servicer
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
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REPLACEMENT MORTGAGE LOAN: A Mortgage Loan or Mortgage Loans in the
aggregate substituted by the Seller for a Deleted Mortgage Loan, which must, on
the date of such substitution, as confirmed in a Request for Release, (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
less than 90% of, the Stated Principal Balance of the Deleted Mortgage Loan;
(ii) have a fixed Mortgage Rate not less than or more than 1% per annum higher
than the Mortgage Rate of the Deleted Mortgage Loan; (iii) have the same or
higher credit quality characteristics than that of the Deleted Mortgage Loan;
(iv) have a Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan; (v) have a remaining term to maturity no greater than (and not more than
one year less than) that of the Deleted Mortgage Loan; (vi) not permit
conversion of the Mortgage Rate from a fixed rate to a variable rate; (vii) have
the same lien priority as the Deleted Mortgage Loan; (viii) constitute the same
occupancy type as the Deleted Mortgage Loan or be owner occupied; and (ix)
comply with each representation and warranty set forth in the Mortgage Loan
Purchase Agreement.
REQUEST FOR RELEASE: The Request for Release to be submitted by the
Seller or the related Servicer to the related Custodian substantially in the
form of Exhibit H. Each Request for Release furnished to the related Custodian
by the Seller or the related Servicer shall be in duplicate and shall be
executed by an officer of such Person or a Servicing Officer (or, if furnished
electronically to the related Custodian, shall be deemed to have been sent and
executed by an officer of such Person or a Servicing Officer) of the related
Servicer.
REQUIRED INSURANCE POLICY: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under this
Agreement or the Servicing Agreement.
RESIDUAL CERTIFICATES: Any one of the Class R Certificates.
RESPONSIBLE OFFICER: With respect to the Trustee, any Vice President,
any Assistant Vice President, the Secretary, any Assistant Secretary, any Trust
Officer, any other officer customarily performing functions similar to those
performed by any of the above designated officers or other officers of the
Trustee specified by the Trustee having direct responsibility over this
Agreement and customarily performing functions similar to those performed by any
one of the designated officers, as to whom, with respect to a particular matter,
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
SCHEDULED PAYMENT: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan.
SECURITIES ACT: The Securities Act of 1933, as amended.
SELLER: Nomura Credit & Capital, Inc., a Delaware corporation, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
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SENIOR CERTIFICATES: The Class A1, Class A2, Class A3, Class A4, Class
A5, Class A6, Class A7, Class AIO and Class APO Certificates.
SENIOR OPTIMAL PRINCIPAL DISTRIBUTION AMOUNT: With respect to each
Distribution Date and the related Loan Group, means an amount equal to the sum
of the following (but in no event greater than the aggregate Certificate
Principal Balance of the related Senior Certificates (other than the Class AIO
Certificates and Class APO Certificates), entitled to distributions of principal
immediately prior to such Distribution Date):
(i) the applicable Senior Percentage of the applicable Non-PO
Percentage of the principal portion of all Monthly Payments due on the Mortgage
Loans in the related Loan Group on the related Due Date, as specified in the
amortization schedule at the time applicable thereto (after adjustment for
previous principal prepayments but before giving effect to any Deficient
Valuation or Debt Service Reduction that occurred prior to the reduction of the
Bankruptcy Loss Coverage Amount to zero);
(ii) the applicable Senior Prepayment Percentage of the
applicable Non-PO Percentage of the Stated Principal Balance of each Mortgage
Loan in the related Loan Group which was the subject of a prepayment in full
received by the related Servicer during the applicable Prepayment Period;
(iii) the applicable Senior Prepayment Percentage of the
applicable Non-PO Percentage of all partial prepayments allocated to principal
received during the applicable Prepayment Period with respect to any Mortgage
Loan in the related Loan Group;
(iv) the lesser of (a) the applicable Senior Prepayment
Percentage of the applicable Non-PO Percentage of the sum of (A) all Net
Liquidation Proceeds allocable to principal received in respect of each Mortgage
Loan in the related Loan Group which became a defaulted Mortgage Loan during the
related Prepayment Period (other than Mortgage Loans described in the
immediately following clause (B)) and (B) the Stated Principal Balance of each
such Mortgage Loan in the related Loan Group purchased by an insurer from the
Trustee during the related Prepayment Period pursuant to the related primary
mortgage insurance policy, if any, or otherwise; and (b) the applicable Senior
Percentage of the applicable Non-PO Percentage of the sum of (A) the Stated
Principal Balance of each Mortgage Loan in the related Loan Group which became a
defaulted Mortgage Loan during the related Prepayment Period (other than the
Mortgage Loans described in the immediately following clause (B)) and (B) the
Stated Principal Balance of each such Mortgage Loan in the related Loan Group
that was purchased by an insurer from the trustee during the related Prepayment
Period pursuant to the related primary mortgage insurance policy, if any or
otherwise; and
(v) the applicable Senior Prepayment Percentage of the
applicable Non-PO Percentage of the sum of (a) the Stated Principal Balance of
each Mortgage Loan in the related Loan Group which was repurchased by the Seller
or the related Servicer in connection with such Distribution Date and (b) the
excess, if any, of the Stated Principal Balance of a Mortgage Loan in the
related Loan Group that has been replaced by the Seller or the related Servicer
with a Replacement Mortgage Loan
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pursuant to the this Agreement or the Servicing Agreement in connection with
such Distribution Date over the Stated Principal Balance of such Replacement
Mortgage Loan; provided, however that if a Deficient Valuation or Debt Service
Reduction is sustained with respect to a Mortgage Loan in the related Loan Group
that is not a Liquidated Loan after the Bankruptcy Loss Coverage Amount has been
reduced to zero, the Senior Optimal Principal Amount for such loan group will be
reduced on the related Distribution Date by the Senior Percentage related to
such Loan Group of the applicable Non-PO Percentage of the principal portion of
such Deficient Valuation or Debt Service Reduction.
SENIOR PERCENTAGE: For the Senior Certificates (other than the Class
APO Certificates and Class AIO Certificates) on any Distribution Date will equal
the lesser of (i) 100% and (ii) the percentage obtained by dividing the
aggregate Certificate Principal Balance of the Senior Certificates (other than
the Class APO Certificates and Class AIO Certificates) immediately preceding
such Distribution Date by the aggregate Stated Principal Balance of the Mortgage
Loans in the related Loan Group (other than the applicable PO Percentage
thereof, with respect to the related Discount Mortgage Loans) as of the
beginning of the related Due Period. The initial Senior Percentages for the
Class A1, Class A2, Class A3, Class A4, Class A5, Class A6 and Class A7
Certificates will be equal to approximately 92.72%, 92.74%, 92.73%, 92.66%,
92.67%, 92.35%, and 92.75%, respectively.
SENIOR PREPAYMENT PERCENTAGE: For the Senior Certificates (other than
the Class APO Certificates and Class AIO Certificates), on any Distribution Date
occurring during the periods set forth below will be as follows:
Period (dates inclusive) Senior Prepayment Percentage
------------------------ ----------------------------
May 25, 2003 - April 25, 2008 100%
May 25, 2008 - April 25, 2009 Senior Percentage for the related Senior Certificates
plus 70% of the related Subordinate Percentage.
May 25, 2009 - April 25, 2010 Senior Percentage for the related Senior Certificates
plus 60% of the related Subordinate Percentage.
May 25, 2010 - April 25, 2011 Senior Percentage for the related Senior Certificates
plus 40% of the related Subordinate Percentage.
May 25, 2011 - April 25, 2012 Senior Percentage for the related Senior Certificates
plus 20% of the related Subordinate Percentage.
May 25, 2012 and thereafter Senior Percentage for the related Senior Certificates.
Notwithstanding the foregoing, however, no reduction of the Senior Prepayment
Percentage for any Loan Group shall occur on any Distribution Date unless, as of
the last day of the month preceding such Distribution Date, (A) the aggregate
Stated Principal Balance of the Mortgage Loans delinquent 60 days
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or more (including for this purpose any such Mortgage Loans in foreclosure and
Mortgage Loans with respect to which the related Mortgaged Property has been
acquired by the trust) as a percentage of the sum of the aggregate Certificate
Principal Balance of the Subordinated Certificates does not exceed 50%; and (B)
cumulative Realized Losses on the Mortgage Loans do not exceed (a) 30% of the
aggregate Certificate Principal Balances of the Subordinated Certificates as of
the Cut-off Date (the "Original Subordinate Principal Balance") if such
distribution date occurs between and including May 2008 and April 2009, (b) 35%
of the Original Subordinate Principal Balance if such Distribution Date occurs
between and including May 2009 and April 2010, (c) 40% of the Original
Subordinate Principal Balance if such distribution date occurs between and
including May 2010 and April 2011, (d) 45% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including May 2011 and
April 2012, and (e) 50% of the Original Subordinate Principal Balance if such
Distribution Date occurs during or after May 2012.
Notwithstanding the foregoing, if on any Distribution Date, the percentage, the
numerator of which is the aggregate Certificate Principal Balance of the related
Senior Certificates (other than the Class APO Certificates and Class AIO
Certificates) immediately preceding such distribution date, and the denominator
of which is the Stated Principal Balance of the Mortgage Loans in the related
Loan Group (other than the PO Percentage thereof, with respect to the Discount
Mortgage Loans) as of the beginning of the related Due Period, exceeds such
percentage as of the Cut-off Date, then the Senior Prepayment Percentages with
respect to the related Class of Senior Certificates for such Distribution Date
will equal 100%.
SERVICER: Shall mean either Option One or WMBFA, as applicable.
SERVICER DEFAULT: As defined in Section 8.01.
SERVICING ADVANCES: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable legal fees) incurred in the
performance by the related 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 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(R)
System, (iii) the management and liquidation of any REO Property (including,
without limitation, realtor's commissions) and (iv) compliance with any
obligations under Section 3.07 hereof to cause insurance to be maintained.
SERVICING AGREEMENT: The Servicing Agreement, dated as of April 1,
2002, between the Seller and WMBFA, as amended by the Assignment Agreement.
SERVICING FEE: As to each Mortgage Loan and any Distribution Date, an
amount equal to 1/12th of the Servicing Fee Rate multiplied by the Stated
Principal Balance of such Mortgage Loan as of the last day of the related Due
Period or, in the event of any payment of interest that accompanies a Principal
Prepayment in full during the related Due Period made by the Mortgagor
immediately prior to such prepayment, interest at the Servicing Fee Rate on the
same Stated Principal Balance of such Mortgage Loan used to calculate the
payment of interest on such Mortgage Loan.
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SERVICING FEE RATE: 0.25% per annum.
SERVICING OFFICER: Any officer of any Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans (i) in
the case of Option One, whose name and facsimile signature appear on a list of
servicing officers furnished to the Trustee by Option One on the Closing Date
pursuant to this Agreement, as such list may from time to time be amended and
(ii) in the case of WMBFA, as to which evidence reasonably acceptable to the
Trustee, as applicable, of due authorization, by such party has been furnished
from time to time to the Trustee.
SPECIAL HAZARD LOSS: A Realized Loss, as reported by the applicable
Servicer to the Trustee, attributable to damage or a direct physical loss
suffered by a Mortgaged Property, including any Realized Loss due to the
presence or suspected presence of hazardous wastes or substances on a Mortgaged
Property other than any such damage or loss covered by a hazard policy or a
flood insurance policy required to be maintained in respect of the Mortgaged
Property under this Agreement or the Servicing Agreement or any loss due to
normal wear and tear or certain other causes.
SPECIAL HAZARD LOSS COVERAGE AMOUNT: $2,106,730 (approximately 1.00% of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date) less, on each Distribution Date, the sum of (1) the aggregate amount of
Special Hazard Losses that would have been previously allocated to the
Subordinated Certificates in the absence of the Loss Allocation Limitation and
(2) the Adjustment Amount. As of any Distribution Date on or after the
Cross-Over Date, the Special Hazard Loss Coverage Amount will be zero.
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 the Servicing Agreement, as applicable,
with respect to such Mortgage Loan, that were received by the related 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. References herein to the Stated Principal Balance
of a Loan Group at any time shall mean the aggregate Stated Principal Balance of
all Mortgage Loans in such Loan Group.
SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: For any Distribution Date,
with respect to the Subordinated Certificates, the amount by which: (a) the sum
of the Certificate Principal Balances of all of the Certificates, after giving
effect to the distribution of principal and the allocation of Realized Losses in
reduction of the Certificate Principal Balances of the Certificates on that
Distribution Date, exceeds (b) the
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aggregate principal balance of all the Mortgage Loans as of the following
Distribution Date, less any Deficient Valuations occurring before the Bankruptcy
Loss Coverage Amount has been reduced to zero.
SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: For the Subordinated Certificates
with respect to each Distribution Date and each Loan Group means an amount equal
to the sum of the following (but in no event greater than the aggregate
Certificate Principal Balances of the Subordinated Certificates immediately
prior to such Distribution Date):
(i) the applicable Subordinate Percentage of the applicable Non-PO
Percentage of the principal portion of all Monthly Payments
due on each Mortgage Loan in the related Loan Group on the
related Due Date, as specified in the amortization schedule at
the time applicable thereto (after adjustment for previous
principal prepayments but before giving effect to any
Deficient Valuation or Debt Service Reduction that occurred
prior to the reduction of the Bankruptcy Loss Coverage Amount
to zero);
(ii) the applicable Subordinate Prepayment Percentage of the
applicable Non-PO Percentage of the Stated Principal Balance
of each Mortgage Loan in the related Loan Group which was the
subject of a prepayment in full received by the related
Servicer during the applicable Prepayment Period;
(iii) the applicable Subordinate Prepayment Percentage of the
applicable Non-PO Percentage of all partial prepayments of
principal received during the applicable Prepayment Period for
each Mortgage Loan in the related loan group;
(iv) the excess, if any, of (a) the Net Liquidation Proceeds
allocable to principal received during the related Prepayment
Period in respect of each defaulted Mortgage Loan in the
related Loan Group over (b) the sum of the amounts
distributable to the related senior certificateholders
pursuant to clause (iv) of the definition of "Senior Optimal
Principal Amount" and "Class APO Certificate Principal
Distribution Amount" on such distribution date;
(v) the applicable Subordinate Prepayment Percentage of the
applicable Non-PO Percentage of the sum of (a) the Stated
Principal Balance of each Mortgage Loan in the related Loan
Group which was repurchased by the Seller or the related
Servicer in connection with such Distribution Date and (b) the
difference, if any, between the Stated Principal Balance of a
Mortgage Loan in the related Loan Group that has been replaced
by the Seller or the related Servicer with a Replacement
Mortgage Loan pursuant to this Agreement or the Servicing
Agreement in connection with such distribution date and the
Stated Principal Balance of such substitute mortgage loan; and
(vi) on the Distribution Date on which the Certificate Principal
Balances of the related Senior Certificates (other than the
Class APO Certificates and Class AIO Certificates) have all
been reduced to zero, 100% of any applicable Senior Optimal
Principal Amount; provided, however that if a
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Deficient Valuation or Debt Service Reduction is sustained
with respect to a Mortgage Loan in the related Loan Group that
is not a Liquidated Loan after the Bankruptcy Loss Coverage
Amount has been reduced to zero, the Subordinate Optimal
Principal Amount for such loan group will be reduced on the
related Distribution Date by the Subordinate Percentage
related to such Loan Group of the applicable Non-PO Percentage
of the principal portion of such Deficient Valuation or Debt
Service Reduction.
SUBORDINATE PERCENTAGE: For the Subordinated Certificates with respect
to each Loan Group related to the Mortgage Loans on any Distribution Date, means
100% minus the related Senior Percentage for the Senior Certificates related to
such Loan Group. The initial Subordinate Percentages for Loan Group I, Loan
Group II, Loan Group III, Loan Group IV, Loan Group V, Loan Group VI and Loan
Group VII will be equal to approximately 7.28%, 7.26%, 7.27%, 7.34%, 7.33%,
7.65% and 7.25%, respectively.
SUBORDINATE PREPAYMENT PERCENTAGE: For the Subordinated Certificates
with respect to each Loan Group related to the Mortgage Loans on any
Distribution Date will equal 100% minus the related Senior Prepayment Percentage
for the Senior Certificates related to such Loan Group, except that on any
Distribution Date after the Certificate Principal Balances of any Senior
Certificates have been reduced to zero, the Subordinate Prepayment Percentage
for the Subordinated Certificates with respect to such Loan Group will equal
100%.
SUBORDINATED CERTIFICATES: The Class M, Class B1, Class B2, Class B3,
Class B4 and Class B5 Certificates.
SUBSEQUENT RECOVERIES: Shall mean all amounts in respect of principal
received by the related Servicer on a Mortgage Loan for which a Realized Loss
was previously incurred.
SUBSERVICING AGREEMENT: Any agreement entered into between the related
Servicer and a subservicer with respect to the subservicing of any Mortgage Loan
subject to this Agreement by such subservicer.
SUBSTITUTION ADJUSTMENT AMOUNT: The meaning ascribed to such term
pursuant to Section 2.03(c).
SUCCESSOR SERVICER: The Trustee or any successor to a Servicer
appointed pursuant to Section 8.02 after the occurrence of a Servicer Default.
TAX MATTERS PERSON: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)-1T. The holder of the greatest Percentage
Interest in a Class of Residual Certificates shall be the Tax Matters Person for
the related REMIC. The Trustee, or any successor thereto or assignee thereof
shall serve as tax administrator hereunder and as agent for the related Tax
Matters Person.
TRANSFER AFFIDAVIT: As defined in Section 6.02(c).
TRANSFER: Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
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TRUST FUND: The corpus of the trust created hereunder consisting of (i)
the Mortgage Loans and all interest accruing and principal due with respect
thereto after the Cut-off Date to the extent not applied in computing the
Cut-off Date Principal Balance thereof; (ii) the Mortgage Files, (iii) the
Distribution Account and the Custodial Accounts maintained by the Servicers and
all amounts deposited therein pursuant to the applicable provisions of this
Agreement and the Servicing Agreement; (iv) property that secured a Mortgage
Loan and has been acquired by foreclosure, deed in lieu of foreclosure or
otherwise; (v) the mortgagee's rights under the Insurance Policies with respect
to the Mortgage Loans; (vi) the Servicing Agreement and the Assignment
Agreement; (vii) the Custodial Assignment and the Custodial Agreements; (viii)
the rights under the Mortgage Loan Purchase Agreement, and (ix) all proceeds of
the foregoing, including proceeds of conversion, voluntary or involuntary, of
any of the foregoing into cash or other liquid property.
TRUSTEE: JPMorgan Chase Bank, a New York banking corporation, not in
its individual capacity, but solely in its capacity as trustee for the benefit
of the Certificateholders under this Agreement, and any successor thereto, and
any corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
UNCERTIFICATED ACCRUED INTEREST: With respect to each Uncertificated
REMIC Regular Interest on each Distribution Date, an amount equal to one month's
interest at the related Uncertificated Pass-Through Rate on the Uncertificated
Principal Balance or Uncertificated Notional Amount, as applicable, of such
REMIC Regular Interest. In each case, Uncertificated Accrued Interest will be
reduced by any Prepayment Interest Shortfalls and shortfalls resulting from
application of the Relief Act (allocated to such REMIC Regular Interests as set
forth in Sections 1.02 and 5.07).
UNCERTIFICATED NOTIONAL AMOUNT: With respect to REMIC I Regular
Interest LT-1IO, the aggregate Stated Principal Balance of the Mortgage Loans in
Loan Group I. With respect to REMIC I Regular Interest LT-2IO, the aggregate
Stated Principal Balance of the Mortgage Loans in Loan Group II. With respect to
REMIC I Regular Interest LT-3IO, the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group III. With respect to REMIC I Regular Interest
LT-4IO, the aggregate Stated Principal Balance of the Mortgage Loans in Loan
Group IV. With respect to REMIC I Regular Interest LT-5IO, the aggregate Stated
Principal Balance of the Mortgage Loans in Loan Group V. With respect to REMIC I
Regular Interest LT-6IO, the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group VI. With respect to REMIC I Regular Interest LT- 7IO, the
aggregate Stated Principal Balance of the Mortgage Loans in Loan Group VII.
UNCERTIFICATED PRINCIPAL BALANCE: With respect to each REMIC Regular
Interest (other than REMIC I Regular Interest LT-1IO, REMIC I Regular Interest
LT-2IO, REMIC I Regular Interest LT-3IO, REMIC I Regular Interest LT-4IO, REMIC
I Regular Interest LT-5IO, REMIC I Regular Interest LT-6IO and REMIC I Regular
Interest LT-7IO), 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 (other than
REMIC I Regular Interest LT-1IO, REMIC I Regular Interest LT-2IO, REMIC I
Regular Interest LT-3IO, REMIC I Regular Interest LT-4IO, REMIC I Regular
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Interest LT-5IO, REMIC I Regular Interest LT-6IO and REMIC I Regular Interest
LT-7IO) 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 and 5.07. The Uncertificated Principal Balance of
each REMIC Regular Interest shall never be less than zero. REMIC I Regular
Interest LT-1IO, REMIC I Regular Interest LT-2IO, REMIC I Regular Interest
LT-3IO, REMIC I Regular Interest LT-4IO, REMIC I Regular Interest LT-5IO, REMIC
I Regular Interest LT-6IO and REMIC I Regular Interest LT-7IO will not have an
Uncertificated Principal Balance.
UNCERTIFICATED REMIC I PASS-THROUGH RATE: With respect to each
Uncertificated REMIC I Regular Interest (other than REMIC I Regular Interest
LT-1IO, REMIC I Regular Interest LT-2IO, REMIC I Regular Interest LT-3IO, REMIC
I Regular Interest LT-4IO, REMIC I Regular Interest LT-5IO, REMIC I Regular
Interest LT-6IO and REMIC I Regular Interest LT-7IO), the Uncertificated REMIC I
Pass-Through Rate as provided in the Preliminary Statement. With respect to
REMIC I Regular Interest LT-1IO, the weighted average of the greater of (x) zero
and (y) the excess of (a) the Net Mortgage Rate on each Loan in Loan Group I
over (b) 5.50% per annum. With respect to REMIC I Regular Interest LT-2IO, the
weighted average of the greater of (x) zero and (y) the excess of (a) the Net
Mortgage Rate on each Loan in Loan Group II over (b) 6.50% per annum. With
respect to REMIC I Regular Interest LT-3IO, the weighted average of the greater
of (x) zero and (y) the excess of (a) the Net Mortgage Rate on each Loan in Loan
Group III over (b) 6.00% per annum. With respect to REMIC I Regular Interest
LT-4IO, the weighted average of the greater of (x) zero and (y) the excess of
(a) the Net Mortgage Rate on each Loan in Loan Group IV over (b) 7.00% per
annum. With respect to REMIC I Regular Interest LT-5IO, the weighted average of
the greater of (x) zero and (y) the excess of (a) the Net Mortgage Rate on each
Loan in Loan Group V over (b) 7.00% per annum. With respect to REMIC I Regular
Interest LT-6IO, the weighted average of the greater of (x) zero and (y) the
excess of (a) the Net Mortgage Rate on each Loan in Loan Group VI over (b) 7.00%
per annum. With respect to REMIC I Regular Interest LT-7IO, the weighted average
of the greater of (x) zero and (y) the excess of (a) the Net Mortgage Rate on
each Loan in Loan Group VII over (b) 5.00% per annum.
UNCERTIFICATED REMIC REGULAR INTEREST: The REMIC I Regular Interests.
UNDERCOLLATERALIZED GROUP: With respect to one or more classes of
Senior Certificates, each such class of Senior Certificates with respect to
which the Certificate Principal Balance of such class (after giving effect to
distributions to be made on such Distribution Date) is greater than the Stated
Principal Balance of the Mortgage Loans in the related Loan Group as of such
Distribution Date.
U.S. BANK CUSTODIAL AGREEMENT: An agreement dated as of the Closing
Date among the Seller, Option One, the Trustee and the U.S. Bank, National
Association substantially in the form of Exhibit K hereto.
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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) 98.00% to the Certificates
(other than the Class AIO Certificates and Class R Certificates and (ii) 1% to
each of the Class AIO Certificates and Class R Certificates. Voting Rights will
be allocated among the Certificates of each such Class in accordance with their
respective Percentage Interests.
WMBFA: Washington Mutual Bank, FA or any successor in interest.
WMBFA CUSTODIAL AGREEMENT: The Custodial Agreement, dated as of April
1, 2002, among the Seller, WMBFA and Washington Mutual Bank fsb.
WMBFA LOANS: Those Mortgage Loans subject to this Agreement which are
serviced by WMBFA pursuant to the Servicing Agreement.
Section 1.02 ALLOCATION OF CERTAIN INTEREST SHORTFALLS.
For purposes of calculating the amount of the Accrued Certificate
Interest for the Certificates (other than the Class APO, Class P and Residual
Certificates) for any Distribution Date, the aggregate amount of any Prepayment
Interest Shortfalls (to the extent not covered by payments by the related
Servicer pursuant to this Agreement or the Servicing Agreement, as applicable)
and any shortfalls resulting from application of the Relief Act in respect of
the Mortgage Loans for any Distribution Date shall be allocated among the
Classes of Certificates in proportion to the respective amounts of Accrued
Certificate Interest that would have been allocated thereto in the absence of
such interest shortfalls.
For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC I Regular Interests for any Distribution Date, the
aggregate amount of any Prepayment Interest Shortfalls to the extent not covered
by payments pursuant to Section 5.02 and any shortfalls resulting from the
application of the Relief Act incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated among REMIC I Regular Interests LT-1SUB,
LT-1ZZZ, LT-2SUB, LT- 2ZZZ, LT-3SUB, LT-3ZZZ, LT-4SUB, LT-4ZZZ, LT-5SUB,
LT-5ZZZ, LT-6SUB, LT-6ZZZ, LT- 7SUB and LT-7ZZZ, pro rata based on, and to the
extent of, one month's interest at the then applicable respective Uncertificated
REMIC I Pass-Through Rate on the respective Uncertificated Principal Balance of
each such REMIC I Regular Interest.
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ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND WARRANTIES
Section 2.01 CONVEYANCE OF TRUST FUND.
The Seller hereby sells, transfers, assigns, sets over and
otherwise conveys to the Depositor, without recourse, all the right, title and
interest of the Seller in and to the assets in the Trust Fund.
The Seller has entered into this Agreement in consideration
for the purchase of the Mortgage Loans by the Depositor and has agreed to take
the actions specified herein.
The Depositor, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the
Trustee for the use and benefit of the Certificateholders, without recourse, all
the right, title and interest of the Depositor in and to the Trust Fund.
In connection with such sale, the Depositor has delivered to,
and deposited with, the Trustee or the Custodian, as its agent, the following
documents or instruments with respect to each Mortgage Loan so assigned: (i) the
original Mortgage Note, including any riders thereto, endorsed without recourse
to the order of "JPMorgan Chase Bank, as Trustee for certificateholders of
Nomura Asset Acceptance Corporation Mortgage Pass-Through Certificates, Series
2003-A1," and showing to the extent available to the Seller an unbroken chain of
endorsements from the original payee thereof to the Person endorsing it to the
Trustee, (ii) the original Mortgage and, if the related Mortgage Loan is a MOM
Loan, noting the presence of the MIN and language indicating that such Mortgage
Loan is a MOM Loan, which shall have been recorded (or if the original is not
available, a copy), with evidence of such recording indicated thereon (or if
clause (x) in the proviso below applies, shall be in recordable form), (iii)
unless the Mortgage Loan is a MOM Loan, the assignment (either an original or a
copy, which may be in the form of a blanket assignment if permitted in the
jurisdiction in which the Mortgaged Property is located) to the Trustee of the
Mortgage with respect to each Mortgage Loan in the name of "JPMorgan Chase Bank,
as Trustee for certificateholders of Nomura Asset Acceptance Corporation
Mortgage Pass-Through Certificates, Series 2003-A1," which shall have been
recorded (or if clause (x) in the proviso below applies, shall be in recordable
form) (iv) an original or a copy of all intervening assignments of the Mortgage,
if any, to the extent available to the Seller, with evidence of recording
thereon, (v) the original policy of title insurance or mortgagee's certificate
of title insurance or commitment or binder for title insurance, if available, or
a copy thereof, or, in the event that such original title insurance policy is
unavailable, a photocopy thereof, or in lieu thereof, a current lien search on
the related Mortgaged Property and (vi) originals or copies of all available
assumption, modification or substitution agreements, if any; provided, however,
that in lieu of the foregoing, the Seller may deliver the following documents,
under the circumstances set forth below: (x) if any Mortgage, assignment thereof
to the Trustee or intervening assignments thereof have been delivered or are
being delivered to recording offices for recording and have
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not been returned in time to permit their delivery as specified above, the
Depositor may deliver a true copy thereof with a certification by the Seller or
the title company issuing the commitment for title insurance, on the face of
such copy, substantially as follows: "Certified to be a true and correct copy of
the original, which has been transmitted for recording"; and (y) in lieu of the
Mortgage Notes relating to the Mortgage Loans identified in the list set forth
in Exhibit J, the Depositor may deliver a lost note affidavit and indemnity and
a copy of the original note, if available; and provided, further, that in the
case of Mortgage Loans which have been prepaid in full after the Cut-Off Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, may deliver to the Trustee a certification of a Servicing Officer to
such effect and in such case shall deposit all amounts paid in respect of such
Mortgage Loans, in the Distribution Account on the Closing Date. In the case of
the documents referred to in clause (x) above, the Depositor shall deliver such
documents to the Trustee promptly after they are received. The Seller shall
cause, at its expense, the Mortgage and intervening assignments, if any, and to
the extent required in accordance with the foregoing, the assignment of the
Mortgage to the Trustee to be submitted for recording promptly after the Closing
Date; provided that the Seller need not cause to be recorded any assignment (a)
in any jurisdiction under the laws of which, as evidenced by an Opinion of
Counsel delivered by the Seller to the Trustee and the Rating Agencies, the
recordation of such assignment is not necessary to protect the Trustee's
interest in the related Mortgage Loan or (b) if MERS is identified on the
Mortgage or on a properly recorded assignment of the Mortgage as mortgagee of
record solely as nominee for Seller and its successors and assigns. In the event
that the Seller or the Depositor gives written notice to the Trustee that a
court has recharacterized the sale of the Mortgage Loans as a financing, the
Seller shall submit or cause to be submitted for recording as specified above
or, should the Seller fail to perform such obligations, the Trustee shall cause
each such previously unrecorded assignment to be submitted for recording as
specified above at the expense of the Trust pursuant to Section 9.05. In the
event a Mortgage File is released to the related Servicer as a result of such
Person having completed a Request for Release, the Trustee shall, if not so
completed, complete the assignment of the related Mortgage in the manner
specified in clause (iii) above.
In connection with the assignment of any Mortgage Loan
registered on the MERS(R) System, the Seller further agrees that it will cause,
at the Seller's own expense, within 30 days after the Closing Date, the MERS(R)
System to indicate that such Mortgage Loans have been assigned by the Seller to
the Depositor and by the Depositor to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files (a) the code in the field which identifies the
specific Trustee and (b) the code in the field "Pool Field" which identifies the
series of the Certificates issued in connection with such Mortgage Loans. The
Seller further agrees that it will not, and will not permit any Servicer to
alter the codes referenced in this paragraph with respect to any Mortgage Loan
during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
Section 2.02 ACCEPTANCE OF THE MORTGAGE LOANS.
(a) Based on the Initial Certification received by it from the
Custodians, the Trustee acknowledges receipt of, subject to the further review
and exceptions reported by the related Custodian
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pursuant to the procedures described below or pursuant to the applicable
Custodial Agreement, the documents (or certified copies thereof) delivered to
the Trustee or the related Custodian on its behalf pursuant to Section 2.01 and
declares that it holds and will continue to hold directly or through a custodian
those documents and any amendments, replacements or supplements thereto and all
other assets of the Trust Fund delivered to it in trust for the use and benefit
of all present and future Holders of the Certificates. On the Closing Date, each
Custodian on the Trustee's behalf will deliver an Initial Certification in the
form annexed hereto as Exhibit C-1 or in the form attached to the related
Custodial Agreement, confirming whether or not it has received the Mortgage File
for each Mortgage Loan, but without review of such Mortgage File, except to the
extent necessary to confirm whether such Mortgage File contains the original
Mortgage Note or a lost note affidavit and indemnity in lieu thereof. No later
than 90 days after the Closing Date, each Custodian on the Trustee's behalf
shall, for the benefit of the Certificateholders, review each Mortgage File
delivered to it and execute and deliver to the Seller and the Trustee an Interim
Certification substantially in the form annexed hereto as Exhibit C-2 or in the
form attached to the related Custodial Agreement, if applicable. In conducting
such review, each Custodian on the Trustee's behalf will ascertain whether all
required documents have been executed and received and whether those documents
relate, determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans identified in Exhibit B to this
Agreement or identified on an Exhibit attached to the related Custodial
Agreement, as supplemented (provided, however, that with respect to those
documents described in subclauses (iv) and (vi) of Section 2.01, such
obligations shall extend only to documents actually delivered pursuant to such
subclauses). In performing any such review, each Custodian may conclusively rely
on the purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. If any 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 or
identified on an Exhibit attached to the related Custodial Agreement, determined
on the basis of the Mortgagor's name, the original principal balance and the
Mortgage Loan number, or to appear to be defective on its face, the related
Custodian shall include such information in the exception report attached to the
Interim Certification or the certification delivered pursuant to the applicable
Custodial Agreement. The Seller shall correct or cure any such defect or, if
prior to the end of the second anniversary of the Closing Date, the Seller may
substitute for the related Mortgage Loan a Replacement Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03 or shall deliver to the Trustee an Opinion of Counsel
to the effect that such defect does not materially or adversely affect the
interests of the Certificateholders in such Mortgage Loan within 60 days from
the date of notice from the Trustee of the defect and if the Seller fails to
correct or cure the defect or deliver such opinion within such period, the
Seller will, subject to Section 2.03, within 90 days from the notification of
the Trustee purchase such Mortgage Loan at the Purchase Price; provided,
however, that if such defect relates solely to the inability of the Seller to
deliver the Mortgage, assignment thereof to the Trustee, or intervening
assignments thereof with evidence of recording thereon because such documents
have been submitted for recording and have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan if
the Seller delivers such documents promptly upon receipt, but in no event later
than 360 days after the Closing Date.
(b) No later than 180 days after the Closing Date, each
Custodian on the Trustee's behalf will review, for the benefit of the
Certificateholders, the Mortgage Files and will execute and deliver
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or cause to be executed and delivered to the Seller and the Trustee, a Final
Certification substantially in the form annexed hereto as Exhibit C-3 or in the
form attached to the related Custodial Agreement, if applicable. In conducting
such review, each Custodian on the Trustee's behalf will ascertain whether each
document required to be recorded has been returned from the recording office
with evidence of recording thereon and the related Custodian on the Trustee's
behalf has received either an original or a copy thereof, as required in Section
2.01 (provided, however, that with respect to those documents described in
subclauses (iv) and (vi) of Section 2.01, such obligations shall extend only to
documents actually delivered pursuant to such subclauses). If any Custodian
finds any document with respect to a Mortgage Loan has not been received, or to
be unrelated, determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans identified in Exhibit B or
identified on an Exhibit to the related Custodial Agreement or to appear
defective on its face, related Custodian shall note such defect in the exception
report attached to the Final Certification or the certification delivered
pursuant to the related Custodial Agreement and the Trustee shall promptly
notify the Seller. The Seller shall correct or cure any such defect or, if prior
to the end of the second anniversary of the Closing Date, the Seller may
substitute for the related Mortgage Loan a Replacement Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03 or shall deliver to the Trustee an Opinion of Counsel
to the effect that such defect does not materially or adversely affect the
interests of Certificateholders in such Mortgage Loan within 60 days from the
date of notice from the Trustee of the defect and if the Seller is unable within
such period to correct or cure such defect, or to substitute the related
Mortgage Loan with a Replacement Mortgage Loan or to deliver such opinion, the
Seller shall, subject to Section 2.03, within 90 days from the notification of
the Trustee, purchase such Mortgage Loan at the Purchase Price; provided,
however, that if such defect relates solely to the inability of the Seller to
deliver the Mortgage, assignment thereof to the Trustee or intervening
assignments thereof with evidence of recording thereon, because such documents
have not been returned by the applicable jurisdiction, the Seller shall not be
required to purchase such Mortgage Loan, if the Seller delivers such documents
promptly upon receipt, but in no event later than 360 days after the Closing
Date.
(c) In the event that a Mortgage Loan is purchased by the
Seller in accordance with subsections 2.02(a) or (b) above or Section 2.03, the
Seller shall remit the applicable Purchase Price to the Trustee for deposit in
the Distribution Account and shall provide written notice to the Trustee
detailing the components of the Purchase Price, signed by an authorized officer.
Upon deposit of the Purchase Price in the Distribution Account and upon receipt
of a Request for Release with respect to such Mortgage Loan, the Trustee will
release to the Seller the related Mortgage File and the Trustee shall execute
and deliver all instruments of transfer or assignment, without recourse,
furnished to it by the Seller, as are necessary to vest in the Seller title to
and rights under the Mortgage Loan. Such purchase shall be deemed to have
occurred on the date on which the deposit into the Distribution Account was
made. The Trustee shall promptly notify the Rating Agencies of such repurchase.
The obligation of the Seller to cure, repurchase or substitute for any Mortgage
Loan as to which a defect in a constituent document exists shall be the sole
remedies respecting such defect available to the Certificateholders or to the
Trustee on their behalf. The Seller shall promptly reimburse the Trustee for any
expenses incurred by the Trustee in respect of enforcing the remedies for such
breach.
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(d) The Seller shall deliver to the Trustee, and Trustee
agrees to accept the Mortgage Note and other documents constituting the Mortgage
File with respect to any Replacement Mortgage Loan, which related Custodian will
review as provided in subsections 2.02(a) and 2.02(b), provided, that the
Closing Date referred to therein shall instead be the date of delivery of the
Mortgage File with respect to each Replacement Mortgage Loan.
Section 2.03 REPRESENTATIONS, WARRANTIES AND COVENANTS OF OPTION ONE
AND THE SELLER.
(a) Option One hereby represents and warrants to, and
covenants with, the Seller, the Depositor and the Trustee as follows, as of the
Closing Date:
(i) It is duly organized and is validly existing and in good
standing under the laws of the State of California 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 relating to an Option One 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 enforce each Option One Mortgage Loan, to service the Option
One 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 Option One 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.
(iii) The execution and delivery of this Agreement by it, the
servicing of the Option One Mortgage Loans by it under this Agreement,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof
are in its ordinary course of business and will not (A) result in a
material breach of any term or provision of its charter or by-laws or
(B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of
any other material agreement or instrument to which it is a party or by
which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to it of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it; and it is not in breach or violation of any material indenture
or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having
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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, against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability
to service the Option One 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) Option One will accurately and fully report its borrower
credit files to each of the credit repositories in a timely manner.
(b) The Seller hereby represents and warrants to and covenants
with, the Depositor, Option One and the Trustee as follows, as of the Closing
Date:
(i) The Seller is duly organized, validly existing and in good
standing under the laws of the State of Delaware and is duly authorized
and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Seller in any state in which a
Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the
extent necessary to ensure its ability to enforce each Mortgage Loan,
to sell the Mortgage Loans in accordance with the terms of this
Agreement and to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(ii) The Seller has the full corporate power and authority to
sell each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by this
Agreement and has duly authorized by all necessary corporate action on
the part of the Seller the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization,
execution and delivery hereof by the other parties hereto, constitutes
a legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except that (a) the
enforceability hereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
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(iii) The execution and delivery of this Agreement by the
Seller, the sale of the Mortgage Loans by the Seller under this
Agreement, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or compliance
with the terms hereof are in the ordinary course of business of the
Seller and will not (A) result in a material breach of any term or
provision of the charter or by-laws of the Seller or (B) materially
conflict with, result in a material breach, violation or acceleration
of, or result in a material default under, the terms of any other
material agreement or instrument to which the Seller is a party or by
which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to the Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Seller; and the Seller is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over it which breach or violation may materially
impair the Seller's ability to perform or meet any of its obligations
under this Agreement.
(iv) The Seller is an approved seller of conventional mortgage
loans for 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 Seller's
knowledge, threatened, against the Seller that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Seller to sell the Mortgage Loans or to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Seller of, or compliance by the Seller with,
this Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is
required, the Seller has obtained the same.
(vii) The representations and warranties set forth in Section
8 of the Mortgage Loan Purchase Agreement are true and correct as of
the Closing Date.
(c) Upon discovery by any of the parties hereto of a breach of
a representation or warranty set forth in Section 8 of the Mortgage Loan
Purchase Agreement that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice thereof to the other parties. The Seller hereby
covenants with respect to the representations and warranties set forth in
Section 8 of the Mortgage Loan Purchase Agreement, that within 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
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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
hereof and any such substitution pursuant to (i) above shall not be effected
prior to the additional delivery to the Trustee of a Request for Release. The
Seller shall promptly reimburse the Trustee for any expenses reasonably incurred
by the Trustee in respect of enforcing the remedies for such breach. To enable
the related Servicer to amend the Mortgage Loan Schedule, the Seller shall,
unless it cures such breach in a timely fashion pursuant to this Section 2.03,
promptly notify the Trustee whether it intends either to repurchase, or to
substitute for, the Mortgage Loan affected by such breach. With respect to the
representations and warranties in Section 8 of the Mortgage Loan Purchase
Agreement that are made to the best of the Seller's knowledge, if it is
discovered by any of the Depositor, the Seller or the Trustee that the substance
of such representation and warranty is inaccurate and such inaccuracy materially
and adversely affects the value of the related Mortgage Loan, notwithstanding
the Seller's lack of knowledge with respect to the substance of such
representation or warranty, the Seller shall nevertheless be required to cure,
substitute for or repurchase the affected Mortgage Loan in accordance with the
foregoing.
With respect to any Replacement Mortgage Loan or Loans, the
Seller shall deliver to the Trustee for the benefit of the Certificateholders
such documents and agreements as are required by Section 2.01. No substitution
will be made in any calendar month after the Determination Date for such month.
Scheduled Payments due with respect to Replacement Mortgage Loans in the Due
Period related to the Distribution Date on which such proceeds are to be
distributed shall not be part of the Trust Fund and will be retained by the
Seller. For the month of substitution, distributions to Certificateholders will
include the Scheduled Payment due on any Deleted Mortgage Loan for the related
Due Period and thereafter the Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan. The 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. Upon such substitution, the Replacement Mortgage Loan
or Loans shall be subject to the terms of this Agreement in all respects, and
the Seller shall be deemed to have made with respect to such Replacement
Mortgage Loan or Loans, as of the date of substitution, the representations and
warranties set forth in Section 8 of the Mortgage Loan Purchase Agreement with
respect to such Mortgage Loan. Upon any such substitution and the deposit into
the Distribution Account of the amount required to be deposited therein in
connection with such substitution as described in the following paragraph and
receipt by the Trustee of a Request for Release for such Mortgage Loan, the
Trustee shall release to the Seller the Mortgage File relating to such Deleted
Mortgage Loan and held for the benefit of the Certificateholders and shall
execute and deliver at the Seller's direction such instruments of transfer or
assignment as have been prepared by the Seller, in each case without recourse,
as shall be necessary to vest in the Seller, or its respective designee, title
to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant
to this Section 2.03. The Trustee shall not have any further responsibility with
regard to such Mortgage File.
For any month in which the Seller substitutes one or more
Replacement Mortgage Loans for a Deleted Mortgage Loan, the Trustee will
determine the amount (if any) by which the aggregate principal balance of all
the Replacement Mortgage Loans as of the date of substitution is less than the
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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 deposited into the Distribution Account, by the
Seller delivering such Replacement Mortgage Loan on the Determination Date for
the Distribution Date relating to the Prepayment Period during which the related
Mortgage Loan became required to be purchased or replaced hereunder.
In the event that the Seller shall have repurchased a Mortgage
Loan, the Purchase Price therefor shall be deposited into the Distribution
Account maintained by the Trustee, on the Determination Date for the
Distribution Date in the month following the month during which the Seller
became obligated to repurchase or replace such Mortgage Loan and upon such
deposit of the Purchase Price, 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 Certificateholders
to the Seller, and the Trustee shall execute and deliver at such Person's
direction the related instruments of transfer or assignment prepared by the
Seller, in each case without recourse, as shall be necessary to transfer title
from the Trustee for the benefit of the Certificateholders and transfer the
Trustee's interest to the Seller to any Mortgage Loan purchased pursuant to this
Section 2.03. It is understood and agreed that the obligation under this
Agreement of the Seller to cure, repurchase or replace any Mortgage Loan as to
which a breach has occurred and is continuing shall constitute the sole remedies
against the Seller respecting such breach available to Certificateholders, the
Depositor or the Trustee.
(d) The representations and warranties set forth in Section
2.03 hereof shall survive delivery of the respective Mortgage Loans and Mortgage
Files to the Trustee or the related 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 Option One, the Seller and the Trustee as follows, as of the
date hereof and as of the Closing Date:
(i) The Depositor is duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware
and has full power and authority (corporate and other) necessary to own
or hold its properties and to conduct its business as now conducted by
it and to enter into and perform its obligations under this Agreement.
(ii) The Depositor has the full corporate power and authority
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement and has duly authorized,
by all necessary corporate action on its part, the execution, delivery
and performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties
hereto, constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its
terms, subject, as to enforceability, to (i) bankruptcy, insolvency,
reorganization, moratorium and other similar laws
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affecting creditors' rights generally and (ii) general principles of
equity, regardless of whether enforcement is sought in a proceeding in
equity or at law.
(iii) The execution and delivery of this Agreement by the
Depositor, the consummation of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof
are in the ordinary course of business of the Depositor and will not
(A) result in a material breach of any term or provision of the charter
or by-laws of the Depositor or (B) materially conflict with, result in
a material breach, violation or acceleration of, or result in a
material default under, the terms of any other material agreement or
instrument to which the Depositor is a party or by which it may be
bound or (C) constitute a material violation of any statute, order or
regulation applicable to the Depositor of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Depositor; and the Depositor is not in breach or violation of any
material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair the Depositor's
ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the
Depositor's knowledge, threatened, against the Depositor that would
materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Depositor to
perform its obligations under this Agreement in accordance with the
terms hereof.
(v) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Depositor of, or compliance by the Depositor
with, this Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval, authorization or
order is required, the Depositor has obtained the same.
The Depositor hereby represents and warrants to the Trustee as
of the Closing Date, following the transfer of the Mortgage Loans to it by the
Seller, the Depositor had good title to the Mortgage Loans and the related
Mortgage Notes were subject to no offsets, claims, defenses or counterclaims.
It is understood and agreed that the representations and
warranties set forth in this Section 2.04 shall survive delivery of the Mortgage
Files to the Trustee or the Custodian for the benefit of the Certificateholders.
Upon discovery by the Depositor, the Servicers 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
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pursuant to Sections 2.02 or 2.03 shall be made unless the Seller delivers to
the Trustee an Opinion of Counsel, addressed to the Trustee, to the effect that
such repurchase or substitution would not (i) result in the imposition of the
tax on "prohibited transactions" of REMIC I or REMIC II or contributions after
the Closing Date, as defined in sections 860F(a)(2) and 860G(d) of the Code,
respectively or (ii) cause either of REMIC I or REMIC II to fail to qualify as a
REMIC at any time that any Certificates are outstanding. Any Mortgage Loan as to
which repurchase or substitution was delayed pursuant to this paragraph shall be
repurchased or the substitution therefor shall occur (subject to compliance with
Sections 2.02 or 2.03) upon the earlier of (a) the occurrence of a default or
imminent default with respect to such Mortgage Loan and (b) receipt by the
Trustee of an Opinion of Counsel to the effect that such repurchase or
substitution, as applicable, will not result in the events described in clause
(i) or clause (ii) of the preceding sentence.
(b) Upon discovery by the Depositor or the Seller that any
Mortgage Loan does not constitute a "qualified mortgage" within the meaning of
section 860G(a)(3) of the Code, the party discovering such fact shall promptly
(and in any event within 5 Business Days of discovery) give written notice
thereof to the other parties and the Trustee. In connection therewith, the
Seller, at the its option, shall either (i) substitute, if the conditions in
Section 2.03(c) with respect to substitutions are satisfied, a Replacement
Mortgage Loan for the affected Mortgage Loan, or (ii) repurchase the affected
Mortgage Loan within 90 days of such discovery in the same manner as it would a
Mortgage Loan for a breach of representation or warranty contained in Section
2.03. The Trustee shall reconvey to the Seller the Mortgage Loan to be released
pursuant hereto in the same manner, and on the same terms and conditions, as it
would a Mortgage Loan repurchased for breach of a representation or warranty
contained in Section 2.03.
Section 2.06 COUNTERSIGNATURE AND DELIVERY OF CERTIFICATES.
The Trustee acknowledges the sale, transfer and assignment to
it of the Trust Fund and, concurrently with such transfer and assignment, has
executed, countersigned and delivered, to or upon the order of the Depositor,
the Certificates in authorized denominations evidencing the entire ownership of
the Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders of
the Certificates and to perform the duties set forth in this Agreement in
accordance with its terms.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 3.01 OPTION ONE.
Option One shall service and administer the Option One
Mortgage Loans on behalf of the Trust and in the best interests of and for the
benefit of the Certificateholders (as determined by Option One in its reasonable
judgment) in accordance with the terms of this Agreement and the Option One
Mortgage Loans and, to the extent consistent with such terms, in the same manner
in which it services and administers similar mortgage loans for its own
portfolio, giving due consideration to customary and usual standards of practice
of mortgage lenders and loan servicers administering similar mortgage loans but
without regard to:
(A) any relationship that Option One, any subservicer or any
Affiliate of Option One or any subservicer may have with the related
Mortgagor;
(B) the ownership or non-ownership of any Certificate by
Option One or any Affiliate of Option One;
(C) Option One's obligation to make Advances or Servicing
Advances; or
(D) Option One's or any subservicer's right to receive
compensation for its services hereunder or with respect to any
particular transaction.
To the extent consistent with the foregoing, Option One shall
seek the timely and complete recovery of principal and interest on the Mortgage
Notes related to the Option One Mortgage Loans and 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 Option One Mortgage Loan;
provided that Option One shall take no action that is inconsistent with or
prejudices the interests of the Trust Fund or the Certificateholders in any
Option One Mortgage Loan or the rights and interests of the Depositor and the
Trustee under this Agreement.
Without limiting the generality of the foregoing, Option One,
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 Option One 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
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instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Option One
Mortgage Loans, and with respect to the related Mortgaged Properties held for
the benefit of the Certificateholders. Option One 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 Option One to
service and administer the Option One Mortgage Loans. Upon receipt of such
documents, the Depositor and/or the Trustee shall execute such documents and
deliver them to Option One.
In accordance with the standards of the first paragraph of
this Section 3.01, Option One 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 Option One Mortgage Loans, which
advances shall be reimbursable in the first instance from related collections
from the Mortgagors pursuant to Section 4.04, and further as provided in Section
4.02. All costs incurred by Option One, if any, in effecting the timely payments
of taxes and assessments on the Mortgaged Properties relating to the Option One
Mortgage Loans 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 Option One 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,
Option One 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, Option One
is not required to exercise such rights with respect to an Option One Mortgage
Loan 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
Option One 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, Option One 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 Mortgage Loan shall continue to be covered (if
so covered before Option One enters such agreement) by the applicable Required
Insurance Policies. Option One, 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, Option One shall not be deemed to be in default
under this Section 3.02(a) by reason of any transfer or assumption that Option
One reasonably believes it is restricted by law from preventing.
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(b) Subject to Option One'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 Option One Mortgage Loan, Option One
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, the Mortgage Rate, the amount of
the Scheduled Payment and any other term affecting the amount or timing of
payment on the Mortgage Loan) may be changed. In addition, the substitute
Mortgagor and the Mortgaged Property must be acceptable to Option One in
accordance with the servicing standard set forth in Section 3.01. Option One
shall notify the Trustee that any such substitution or assumption agreement has
been completed by forwarding to the Trustee 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 Option One for entering into
an assumption or substitution of liability agreement will be retained by Option
One as additional servicing compensation.
Section 3.03 SUBSERVICERS.
Option One 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 Option One of a subservicer shall
not release Option One from any of its obligations hereunder with respect to the
Option One Mortgage Loans and Option One shall remain responsible hereunder with
respect to the Option One Mortgage Loans for all acts and omissions of each
subservicer under the related subservicing agreement as fully as if such acts
and omissions were those of Option One. Option One shall pay all fees of each
subservicer from its own funds, and a subservicer's fee shall not exceed the
Servicing Fee payable to Option One hereunder.
At the cost and expense of Option One, without any right of
reimbursement from its Custodial Account, Option One shall be entitled to
terminate the rights and responsibilities of a subservicer and arrange for any
servicing responsibilities to be performed by a successor subservicer; provided,
however, that nothing contained herein shall be deemed to prevent or prohibit
Option One, at Option One's option, from electing to service the related Option
One Mortgage Loans itself. In the event that Option One's responsibilities and
duties under this Agreement are terminated pursuant to Section 8.03, Option One
shall at its own cost and expense terminate the rights and responsibilities of
each subservicer effective as of the date of termination of Option One. Option
One shall pay all fees, expenses or penalties necessary in order to terminate
the rights and responsibilities of each subservicer from Option One's own funds
without reimbursement from the Trust Fund.
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Notwithstanding the foregoing, Option One shall not be
relieved of its obligations hereunder with respect to the Option One 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 Option One
Mortgage Loans. Option One shall be entitled to enter into an agreement with a
subservicer for indemnification of Option One by the subservicer 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 Option One Mortgage Loans involving a subservicer shall
be deemed to be between such subservicer and Option One alone, and the Trustee
shall not have any obligations, duties or liabilities with respect to such
subservicer including any obligation, duty or liability of the Trustee to pay
such subservicer'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 Trustee
pursuant to this Agreement, Option One shall be deemed to have received a
payment on an Option One Mortgage Loan when a subservicer has received such
payment.
Section 3.04 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SERVICER TO
BE HELD FOR TRUSTEE.
Notwithstanding any other provisions of this Agreement, Option
One shall transmit to the Trustee as required by this Agreement all documents
and instruments in respect of an Option One Mortgage Loan coming into the
possession of Option One from time to time and shall account fully to the
Trustee for any funds received by Option One or that otherwise are collected by
Option One 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, Option One in respect of any Option One Mortgage Loans, whether from
the collection of principal and interest payments or from Liquidation Proceeds,
including but not limited to, any funds on deposit in the Custodial Account
maintained by Option One, shall be held by Option One 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. Option One also agrees
that it shall not create, incur or subject any Mortgage File or any funds that
are deposited in the Custodial Account maintained by Option One or 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, an Option One Mortgage Loan, except, however, that Option
One shall be entitled to set off against and deduct from any such funds any
amounts that are properly due and payable to Option One under this Agreement.
Section 3.05 MAINTENANCE OF HAZARD INSURANCE.
(a) Option One shall cause to be maintained for each Option
One Mortgage Loan 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 Option One Mortgage Loan and (ii) the amount necessary
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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. Option One 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. Option One 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 Option One 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 Option One 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 Custodial Account,
subject to withdrawal pursuant to Section 4.02. Any cost incurred by Option One
in maintaining any such insurance shall not, for the purpose of calculating
distributions to Certificateholders, be added to the Stated Principal Balance of
the related Option One Mortgage Loan, notwithstanding that the terms of such
Option One Mortgage Loan so permit. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any time
be in force and as shall require such additional insurance. If the Mortgaged
Property 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, Option One will cause to be
maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the Stated Principal Balance of
the related Option One 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 Option One shall obtain and maintain a
blanket policy with an insurer having a General Policy Rating of B:III 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 Option One Mortgage Loans,
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 Option One
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 Custodial Account
from its own funds the amount not otherwise payable under the blanket policy
because of such deductible clause. In connection with its activities as
administrator and servicer of the Option One Mortgage Loans, Option One 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) Option One 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 Option One's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the Option
One Mortgage Loans, unless Option
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One has obtained a waiver of such requirements from Xxxxxx Mae or Xxxxxxx Mac.
Option One shall provide the Trustee, upon request, with copies of such
insurance policies and fidelity bond. Option One shall also maintain a fidelity
bond in the form and amount that would meet the requirements of Xxxxxx Mae or
Xxxxxxx Mac, unless Option One has obtained a waiver of such requirements from
Xxxxxx Mae or Xxxxxxx Mac. Option One shall be deemed to have complied with this
provision if an Affiliate of Option One 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 Option One. Any such errors
and omissions policy and fidelity bond shall by its terms not be cancelable
without thirty days' prior written notice to the Trustee. Option One shall also
cause each subservicer 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.
Option One shall prepare and present on behalf of the Trustee
and the Certificateholders all claims under the 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 Option One in respect of such Insurance
Policies shall be promptly deposited in the Custodial Account maintained by
Option One 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 3.07 MAINTENANCE OF INSURANCE POLICIES.
(a) Option One shall not take any action that would result in
noncoverage under any applicable Insurance Policy of any loss which, but for the
actions of Option One would have been covered thereunder. Option One shall use
its best efforts to keep in force and effect (to the extent that the Mortgage
Loan requires the Mortgagor to maintain such insurance), any Insurance Policy
applicable to each Option One Mortgage Loan. Option One shall not cancel or
refuse to renew any such 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. In addition and notwithstanding anything in this Article III
to the contrary, Option One shall not agree to any modification or assumption of
a PMI Mortgage Loan or take any other action with respect to a PMI Mortgage Loan
that could result in denial of coverage under the PMI Policy. Option One shall
notify the PMI Insurer that the Trustee, on behalf of the Certificateholders, is
the Insured, as that term is defined in the PMI Policy, of each PMI Mortgage
Loan.
(b) Option One agrees to prepare and file on a timely basis,
on behalf of the Trustee and the Certificateholders, claims to the PMI Insurer
and any other insurer under any Insurance Policies related to the Option One
Mortgage Loans and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any such Insurance Policies respecting
defaulted Option One Mortgage Loans. Pursuant to Section 4.01, any amounts
collected by Option One under any Insurance Policies shall be deposited in the
Custodial Account maintained by Option One, subject to withdrawal pursuant to
Section 4.02 hereof.
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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) Option One shall use reasonable efforts to foreclose upon
or otherwise comparably convert the ownership of properties securing such of the
Option One Mortgage Loans 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, Option One 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
Option One 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 Option One 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 Custodial Account maintained by Option One pursuant to
Section 4.02). If Option One 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. Option One will give notice of any such charge-off to
the Trustee. Option One 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 4.02. If Option One has knowledge that a Mortgaged
Property that Option One 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 Option One, Option One will,
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
Certificateholders (or the Trustee's nominee on behalf of the
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.
Option One 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, Option One shall either itself or through an agent selected
by Option One 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
Certificateholders, rent the same, or any part thereof, as Option One deems to
be in the best interest of Option One and the Certificateholders for the period
prior to the sale of such REO Property. Option One shall prepare for and deliver
to the Trustee 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 Trustee 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 Custodial Account maintained by
Option One no later
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than the close of business on each Determination Date. Option One shall perform
the tax reporting and withholding related to foreclosures, abandonments and
cancellation of indebtedness income as specified by Sections 1445, 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 an Option One Mortgage Loan, Option One 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 shall
be supplied with an Opinion of Counsel (such opinion not to be an expense of the
Trustee 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 I or REMIC II as
defined in section 860F of the Code or cause either REMIC I or REMIC II 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 any of REMIC I or REMIC II 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 Option One has
agreed to indemnify and hold harmless the Trust Fund with respect to the
imposition of any such taxes.
The decision of Option One to foreclose on a defaulted Option
One Mortgage Loan shall be subject to a determination by Option One 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 Option One 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 related defaulted
Option One 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 Custodial Account maintained by
Option One. 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 related Option One 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 Option One as provided above, shall be deposited in
the Custodial Account maintained by Option One on the next succeeding
Determination Date following receipt thereof for distribution on the related
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Distribution Date, except that any Excess Liquidation Proceeds shall be retained
by Option One 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, will be applied in the following order of priority: first, to
reimburse Option One for any related unreimbursed Servicing Advances and
Servicing Fees, pursuant to Section 4.02 or this Section 3.09; second, to
reimburse Option One for any unreimbursed Advances, pursuant to Section 4.02 or
this Section 3.09; third, to accrued and unpaid interest (to the extent no
Advance has been made for such amount) on the Option One 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, Option One shall determine the
respective aggregate amounts of Excess Liquidation Proceeds and Realized Losses,
if any, for the related Prepayment Period.
(c) Option One has no intent to foreclose on any Option One
Mortgage Loan based on the delinquency characteristics as of the Closing Date;
provided, that the foregoing does not prevent Option One from initiating
foreclosure proceedings on any date hereafter if the facts and circumstances of
such Mortgage Loans including delinquency characteristics in Option One's
discretion so warrant such action.
Section 3.10 SERVICING COMPENSATION.
As compensation for its activities hereunder, Option One shall
be entitled to retain or withdraw from its Custodial Account out of each payment
of interest on an Option One Mortgage Loan included in the Trust Fund an amount
equal to the Servicing Fee. In addition, Option One shall be entitled to recover
unpaid Servicing Fees out of Insurance Proceeds or condemnation proceeds to the
extent permitted by Section 4.02.
Additional servicing compensation with respect to Option One
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 Option One, all income and gain net
of any losses realized from Permitted Investments with respect to funds in or
credited to the Custodial Account maintained by Option One shall be retained by
Option One to the extent not required to be deposited in the Custodial Account
maintained by Option One pursuant to Section 4.02. Option One 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 in Section 4.02.
Section 3.11 REO PROPERTY.
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(a) In the event the Trust Fund acquires ownership of any REO
Property in respect of any related Option One Mortgage Loan, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee, on behalf
of the related Certificateholders. Option One 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, Option One shall
protect and conserve such REO Property in the manner and to the extent required
herein, in accordance with the REMIC Provisions.
(b) Option One shall deposit all funds collected and received
in connection with the operation of any REO Property into the Custodial Account
maintained by Option One.
(c) Option One, 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 relating to an
Option One Mortgage Loan or the acquisition thereof by the Trust Fund pursuant
to a deed-in-lieu of foreclosure, Option One shall submit a liquidation report
to the Trustee containing such information as shall be mutually acceptable to
Option One and the Trustee with respect to such Mortgaged Property.
Section 3.13 ANNUAL CERTIFICATE AS TO COMPLIANCE.
(a) Option One will deliver to the Depositor and the Trustee
not later than March 1, 2004 and thereafter, not later than March 15 of each
year (or, in each case, if such day is not a Business Day, the immediately
preceding Business Day), a certificate of a Servicing Officer stating, as to
each signatory thereof, that (i) a review of the activities of Option One during
the preceding calendar year and of performance under this Agreement has been
made under such officers' supervision, and (ii) to the best of such officers'
knowledge, based on such review, Option One has fulfilled all of its obligations
under this Agreement throughout such year, or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officers and the nature and status thereof except for such defaults as such
officer in its good faith judgment believe to be immaterial.
(b) (i) Option One will deliver to the Depositor and the
Trustee, on or before March 1, 2004, and for each year thereafter, not later
than March 15 or on any alternative date specified by the Depositor or the
Trustee upon thirty (30) days written request, a certification containing the
information set forth in Exhibit L. Such certification shall be signed by the
senior officer in charge of servicing of Option One. In addition, Option One
shall provide such other information with respect to the Option One Mortgage
Loans and the servicing and administration thereof within the control of Option
One which shall
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be required to enable the Depositor and the Trustee to comply with the reporting
requirements of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act").
(ii) Option One shall indemnify and hold harmless the
Depositor, the Trustee and their respective officers, directors, agents and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach by Option One or any of its officers,
directors, agents or affiliates of its obligations under this Section 3.13(b),
or a breach in any of the representations in the certification delivered
pursuant to clause (b)(i) above, or Option One's negligence, bad faith or
willful misconduct in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Depositor and the
Trustee, then Option One agrees that it shall contribute to the amount paid or
payable by the Depositor and the Trustee as a result of the losses, claims,
damages or liabilities of the Depositor or the Trustee in such proportion as is
appropriate to reflect the relative fault of the Trustee or the Depositor on the
one hand and Option One on the other in connection with a breach of Option One's
obligations under this Section 3.13(b) or Option One's negligence, bad faith or
wilful misconduct in connection therewith or a breach of any of the
representations in the certification delivered pursuant to clause (b)(i) above.
Section 3.14 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORT.
Not later than February 28th of each year, commencing in 2004,
Option One, at its expense, shall cause a nationally recognized firm of
independent certified public accountants to furnish to Option One a report
stating that (i) it has obtained a letter of representation regarding certain
matters from the management of Option One which includes an assertion that
Option One has complied with certain minimum residential mortgage loan servicing
standards, identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America, with respect
to the servicing of residential mortgage loans during the most recently
completed fiscal year and (ii) on the basis of an examination conducted by such
firm in accordance with standards established by the American Institute of
Certified Public Accountants, such representation is fairly stated in all
material respects, subject to such exceptions and other qualifications that may
be appropriate. In rendering its report such firm may rely, as to matters
relating to the direct servicing of residential mortgage loans by subservicers,
upon comparable reports of firms of independent certified public accountants
rendered on the basis of examinations conducted in accordance with the same
standards (rendered within one year of such report) with respect to those
subservicers. Promptly upon receipt of such report, Option One shall furnish a
copy of such report to the Depositor, the Trustee and each Rating Agency. Copies
of such statement shall be provided by the Trustee to any Certificateholder upon
request at Option One's expense, provided that such statement is delivered by
Option One to the Trustee.
Section 3.15 BOOKS AND RECORDS.
Option One shall be responsible for maintaining, and shall
maintain, a complete set of books and records for the Option One Mortgage Loans
which shall be appropriately identified in Option One's computer system to
clearly reflect the ownership of the Option One Mortgage Loans by the Trust. In
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particular, Option One shall maintain in its possession, available for
inspection by the Trustee and shall deliver to the Trustee 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 Option One 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 Option One complies with the requirements of Accepted Servicing
Practices.
Option One shall maintain with respect to each Option One
Mortgage Loan and shall upon reasonable prior request and during normal business
hours make available for inspection by the Trustee the related servicing file
during the time such Option One Mortgage Loan is subject to this Agreement and
thereafter in accordance with applicable law.
Section 3.16 TRUSTEE.
The Trustee shall furnish the Servicers with any powers of
attorney and other documents in form as mutually agreed upon and necessary or
appropriate to enable each Servicer 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 the related Servicer any court pleadings, requests for trustee's sale or
other documents necessary or desirable to (i) the foreclosure or trustee's sale
with respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.17 REMIC-RELATED COVENANTS.
For as long as each REMIC shall exist, the Trustee shall act
in accordance herewith to assure continuing treatment of such REMIC as a REMIC,
and the Trustee shall comply with any directions of the Seller or the related
Servicer to assure such continuing 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
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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 ENFORCING OBLIGATIONS OF THE SERVICERS.
(a) Notwithstanding anything in this Agreement or the Credit
Risk Management Agreement to the contrary, the Trustee shall not have any duty
or obligation to enforce the Credit Risk Management Agreement or to supervise,
monitor or oversee the activities of the Credit Risk Manager or Option One under
the Credit Risk Management Agreement with respect to any action taken or not
taken by Option One pursuant to a recommendation of the Credit Risk Manager. To
the extent that the costs and expenses of the Trustee related to any termination
of the related Servicer, appointment of a Successor Servicer or the transfer and
assumption of servicing by the Trustee with respect to this Agreement or the
Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the related Servicer as a result of an event of
default by such Person 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
service to service the Mortgage Loans in accordance with this Agreement or the
Servicing Agreement) are not fully and timely reimbursed by the related
Servicer, the Trustee shall be entitled to reimbursement of such costs and
expenses from the Distribution Account.
(b) If the Trustee acts as a servicer, it will not assume
liability for the representations and warranties of a Servicer that it replaces.
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, the related Servicer will
promptly furnish to the Trustee and the related Custodian, on behalf of the
Trustee, two copies of a certification substantially in the form of Exhibit H
hereto or a certification in the form described in the Servicing Agreement, as
applicable, signed by a Servicing Officer or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Custodial Account maintained by such Servicer pursuant to
Article V hereof or pursuant to the Servicing Agreement have been or will be so
deposited) and shall request that the related Custodian, on behalf of the
Trustee, deliver to the related Servicer the related Mortgage File. Upon receipt
of such certification and request, the related Custodian, on behalf of the
Trustee, shall promptly release the related Mortgage File to the related
Servicer and the Trustee and related Custodian shall have no further
responsibility with regard to such Mortgage File. Upon any such payment in full,
the related Servicer is
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authorized, to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Custodial Account
maintained by such Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with this Agreement or the
Servicing 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 related Custodian, on behalf of the Trustee, shall,
upon the written request of the related Servicer, and delivery to the related
Custodian, on behalf of the Trustee, of two copies of a request for release
signed by a Servicing Officer substantially in the form of Exhibit H or in the
form described in the Servicing Agreement, as applicable, (or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer), 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 related
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 a Servicing Officer similar to that hereinabove
specified, the Mortgage File shall be released by the related Custodian, on
behalf of the Trustee, to the related Servicer.
Section 3.20 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF A SERVICER
TO BE HELD FOR TRUSTEE.
(a) The related Servicer (to the extent required by this
Agreement or the Servicing Agreement) shall transmit to the Trustee or to
related Custodian such documents and instruments coming into the possession of
such Person from time to time as are required by the terms hereof the Servicing
Agreement, as applicable to be delivered to the Trustee or the related
Custodian. Any funds received by the related Servicer in respect of any Mortgage
Loan or which otherwise are collected by the related 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
the related Servicer to retain its Servicing Fee and other amounts as provided
in this Agreement or the Servicing Agreement.
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 as contemplated by this
Agreement. Until all amounts distributable in respect of the Certificates have
been distributed in full, the Trustee (or the related 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.
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Section 3.22 ANNUAL CERTIFICATE AS TO COMPLIANCE
(a) The Depositor will prepare and file or caused to be
prepared and filed the initial Form 8-K. Within 15 days after each Distribution
Date, the Trustee shall, in accordance with industry standards, file with the
Commission via the Electronic Data Gathering and Retrieval System ("XXXXX"), a
Form 8-K with a copy of the statement to be furnished by the Trustee to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
January 30, 2004, the Trustee shall, in accordance with industry standards, file
a Form 15 Suspension Notice with respect to the Trust Fund. Prior to March 30,
2004 and annually thereafter, if required, the Trustee shall, subject to
subsection (d) below, file a Form 10-K, in substance conforming to industry
standards, with respect to the Trust Fund. Such Form 10K shall be signed by the
Depositor and shall include, to the extent available, as exhibits (i) each
applicable Servicer's annual statement of compliance described under Section
3.13 hereof or under the Servicing Agreement, as applicable, (ii) each
applicable Servicer's accountants report described under Section 3.14 hereof or
under the Servicing Agreement, as applicable and (iii) the Form 10-K
certification signed by the Depositor. If items (i), (ii) and (iii) in the
preceding sentence are not timely delivered, the Trustee shall file an amended
Form 10-K including such documents as exhibits reasonably promptly after they
are delivered to the Trustee. The Depositor hereby grants to the Trustee a
limited power of attorney to execute and file each Form 8-K and the Form 15 on
behalf of the Depositor. Such power of attorney shall continue until either the
earlier of (i) receipt by the Trustee from the Depositor of written termination
of such power of attorney and (ii) the termination of the Trust Fund. The
Depositor agrees to promptly furnish to the Trustee, from time to time upon
request, such further information, reports and financial statements within its
control related to this Agreement and the Mortgage Loans as the Trustee
reasonably deems appropriate to prepare and file a Form 8-K and the Form 15 with
the Commission. The Trustee will reasonably cooperate with the Depositor in
connection with any additional filings with respect to the Trust Fund as the
Depositor deems necessary under the Exchange Act. Copies of all reports filed by
the Trustee under the Exchange Act shall be sent to the Depositor.
(b) In connection with the filing of any 10-K hereunder, the
Trustee shall sign a certification (in the form attached hereto as Exhibit M)
for the Depositor regarding certain aspects of the Form 10-K certification
signed by the Depositor, provided, however, that the Trustee shall not be
required to undertake an analysis of any accountant's report attached as an
exhibit to the Form 10-K.
(c) (i) The Trustee shall indemnify and hold harmless the
Depositor and its officers, directors and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach of the Trustee's obligations under this Section 3.22 or the
Trustee's negligence, bad faith or willful misconduct in connection therewith.
(ii) The Depositor shall indemnify and hold harmless
the Trustee and its officers, directors and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach of the obligations of the Depositor under this Section 3.22
or the Depositor's negligence, bad faith or willful misconduct in connection
therewith.
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(iii) If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Depositor or the Trustee, as
applicable, then the other party, in connection with a breach of its respective
obligations under this Section 3.22 or its respective negligence, bad faith or
willful misconduct in connection therewith, agrees that it shall contribute to
the amount paid or payable by the other party as a result of the losses, claims,
damages or liabilities of the other party in such proportion as is appropriate
to reflect the relative fault and the relative benefit of the Depositor on the
one hand and the Trustee on the other.
(d) Nothing shall be construed from the foregoing subsections
(a), (b) and (c) to require the Trustee or any officer, director or Affiliate
thereof to sign any Form 10-K or any certification contained therein.
Furthermore, the inability of the Trustee to file a Form 10-K as a result of the
lack of required information as set forth in Section 3.22(a) or required
signatures on such Form 10-K or any certification contained therein shall not be
regarded as a breach by the Trustee of any obligation under this Agreement.
(e) Notwithstanding the provisions of Section 11.01, this
Section 3.22 may be amended without the consent of the Certificateholders.
Section 3.23 UCC.
The Seller agrees to execute continuation statements for any
Uniform Commercial Code financing statements which the Seller has informed the
Trustee were filed on the Closing Date in connection with the Trust. The Seller
shall file any financing statements or amendments and continuation statements
thereto required by any change in the Uniform Commercial Code.
Section 3.24 OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS.
With respect to any Mortgage Loans which as of the first day
of a Calendar Quarter is delinquent in payment by 91 days or more or is an REO
Property, the Seller shall have the right to purchase such Mortgage Loan or REO
Property from the Trust or a price equal to the Purchase Price; provided however
(i) that such Mortgage Loan is still 90 days or more delinquent or is an REO
Property as of the date of such purchase and (ii) this purchase option, if not
theretofore exercised, shall terminate on the date prior to the last day of the
related Calendar Quarter. This purchase option, if not exercised, shall not be
thereafter reinstated unless the delinquency is cured and the Mortgage Loan
thereafter again becomes 90 days or more delinquent or becomes an REO Property,
in which case the option shall again become exercisable as of the first day of
the related Calendar Quarter.
If at any time the Seller remits to the Trustee a payment for
deposit in the Distribution Account covering the amount of the Purchase Price
for such a Mortgage Loan, then the Trustee shall execute the assignment of such
Mortgage Loan at the request of the Seller without recourse to the Seller 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
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security. The Seller will thereupon own such Mortgage, and all such security and
documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
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ARTICLE IV
ACCOUNTS
Section 4.01 COLLECTION OF MORTGAGE LOAN PAYMENTS; CUSTODIAL ACCOUNT.
(a) Option One shall make reasonable efforts in accordance
with customary and usual standards of practice of prudent mortgage lenders in
the respective states in which the Mortgaged Properties are located to collect
all payments called for under the terms and provisions of the Option One
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, Option One may in its discretion (i) waive any
late payment charge and (ii) extend the due dates for payments due on a Mortgage
Note for an Option One Mortgage Loan for a period not greater than 125 days. In
the event of any such arrangement, Option One shall make Advances on the related
Option One Mortgage Loan during the scheduled period in accordance with the
amortization schedule of such Option One Mortgage Loan without modification
thereof by reason of such arrangements, and shall be entitled to reimbursement
therefor in accordance with Section 5.01. Option One 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) an Option One Mortgage Loan is in default or
default is imminent or (y) Option One delivers to the Trustee a certification,
based on the advice of counsel or certified public accountants, in either case,
that have a national reputation with respect to taxation of REMICs, that a
modification of such Option One Mortgage Loan will not result in the imposition
of taxes on or disqualify any of REMIC I or REMIC II, Option One may, (A) amend
the related Mortgage Note to reduce the Mortgage Rate applicable thereto,
provided that such reduced Mortgage Rate shall in no event be lower than 5.50%
with respect to any Option One Mortgage Loan in Loan Group I, 6.00% with respect
to any Option One Mortgage Loan in Loan Group II, 6.50% with respect to any
Option One Mortgage Loan in Loan Group III, 7.00% with respect to any Option One
Mortgage Loan in Group IV, 7.00% with respect to any Option One Mortgage Loan
Group in V, 7.00% with respect to any Option One Mortgage Loan in Group VI and
5.00% with respect to any Mortgage Loan in Group VII and (B) amend any Mortgage
Note for an Option One Mortgage Loan to extend to the maturity thereof.
(b) Option One shall establish and maintain a segregated
Custodial Account (which shall at all times be an Eligible Account) with a
depository institution in the name of the Servicer for the benefit of the
Trustee on behalf of the Certificateholders and designated "JPMorgan Chase Bank,
as trustee for registered holders of Nomura Asset Acceptance Corporation,
Mortgage Pass-Through Certificates, Series 0000-X0". Xx behalf of the Trust
Fund, Option One 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 Option One's receipt thereof, and
shall thereafter deposit in the Custodial Account, in no event more than two
Business Days after Option One'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 Option
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One Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest due on the Option One 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 Option One Mortgage
Loans;
(ii) all payments on account of interest on the Option One
Mortgage Loans net of the related Servicing Fee permitted under Section
3.10 and LPMI Fees, if any;
(iii) all Liquidation Proceeds, Insurance Proceeds and
condemnation proceeds with respect to the Option One Mortgage Loans,
other than proceeds to be applied to the restoration or repair of the
related Mortgaged Property or released to the Mortgagor in accordance
with Option One's normal servicing procedures;
(iv) any amount required to be deposited by Option One
pursuant to Section 4.01(c) in connection with any losses on Permitted
Investments;
(v) any amounts required to be deposited by Option One
pursuant to Section 3.05;
(vi) without duplication, all payments of claims under the PMI
Policy;
(vii) any amounts paid by an Advancing Person in respect of
Advances or Servicing Advances; and
(vii) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by Option One into
the 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 remitted by Option
One. In the event that Option One shall remit any amount not required to be
remitted and not otherwise subject to withdrawal pursuant to Section 4.02, it
may at any time withdraw or direct the institution maintaining the Custodial
Account, to withdraw such amount from the 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 Custodial Account, that describes the amounts deposited in error in the
Custodial Account. Option One shall maintain adequate records with respect to
all withdrawals made pursuant to this Section. All funds deposited in the
Custodial Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 4.02.
(c) The institution that maintains the Custodial Account or
other authorized entity shall invest the funds in the Custodial Account, in the
manner directed by Option One, 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
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benefit of the Certificateholders. All income and gain net of any losses
realized from any such investment shall be for the benefit of Option One as
servicing compensation and shall be remitted to it monthly as provided herein.
The amount of any losses incurred in the Custodial Account in respect of any
such investments shall be deposited by the Servicer into the Custodial Account,
out of Option One's own funds.
(d) Option One shall give at least 30 days advance notice to
the Trustee, the Seller, each Rating Agency and the Depositor of any proposed
change of location of the Custodial Account prior to any change thereof.
Section 4.02 PERMITTED WITHDRAWALS FROM THE CUSTODIAL ACCOUNT.
(a) Option One may from time to time make withdrawals from the
Custodial Account for the following purposes:
(i) to pay itself (to the extent not previously paid to or
withheld by Option One), 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 Option One or an Advancing 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 Option One 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 an Option One 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 Option One Mortgage Loan are insufficient to reimburse
Option One or an Advancing Person for such unreimbursed Advances or (C)
subject to Section 4.02(b), any unreimbursed Advances to the extent of
Amounts Held For Future Distribution funds held in the Collection
Account that were not included in Group Available Funds for the
preceding Distribution Date;
(iii) to reimburse Option One or an Advancing Person for any
previously made portion of a Servicing Advance or an Advance made by
the Servicer or such Advancing Person that, in the good faith judgment
of Option One, will not be ultimately recoverable by it from the
related Mortgagor, any related Liquidation Proceeds, Insurance Proceeds
or otherwise (a "Nonrecoverable Advance"), to the extent not reimbursed
pursuant to clause (ii) or clause (v);
(iv) to reimburse Option One from Insurance Proceeds for
Insured Expenses covered by the related Insurance Policy;
(v) to pay Option One any unpaid Servicing Fees and to
reimburse it or any Advancing Person for any unreimbursed Servicing
Advances, provided, however, that Option
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One's or such Advancing Person's right to reimbursement for Servicing
Advances pursuant to this subclause (v) with respect to any Option One
Mortgage Loan shall be limited to amounts received on particular Option
One 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 Seller or the Depositor with respect to
each 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 recoverable by Option One pursuant
to Section 7.04;
(viii) to withdraw pursuant to Section 5.01 any amount
deposited in the Custodial Account and not required to be deposited
therein; and
(ix) to clear and terminate the Custodial Account upon
termination of this Agreement pursuant to Section 10.01 hereof.
In addition, no later than 3:00 p.m. Eastern time on the
Remittance Date, Option One shall withdraw from the Custodial Account and remit
to the Trustee the amount required to be withdrawn therefrom pursuant to Section
4.05. In addition, on or before the Remittance Date, Option One shall remit to
the Trustee for deposit in the Distribution Account any Advances or any payments
of Compensating Interest required to be made by Option One with respect to the
Option One Mortgage Loans.
Option One shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis with respect to the Option One Mortgage
Loans, for the purpose of justifying any withdrawal from the Custodial Account
pursuant to subclauses (i), (ii), (iv), (v) and (vi) above. Prior to making any
withdrawal from the Custodial Account pursuant to subclause (iii), Option One
shall deliver to the Trustee an Officer's Certificate of a Servicing Officer
indicating the amount of any previous Advance or Servicing Advance determined by
Option One to be a Nonrecoverable Advance and identifying the related Option One
Mortgage Loan(s), and their respective portions of such Nonrecoverable Advance.
(b) Notwithstanding the foregoing, any Amounts Held For Future
Distribution withdrawn by Option One as permitted in Section 4.02(a)(ii) in
reimbursement of Advances previously made shall be appropriately reflected in
Option One's records and replaced by Option One by deposit in the Custodial
Account, no later than the close of business on the Remittance Date immediately
preceding the Distribution Date on which such funds are required to be
distributed pursuant to this Agreement.
Section 4.03 REPORTS TO TRUSTEE.
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On or before the tenth calendar day of each month, Option One shall
furnish to the Trustee electronically in a format acceptable to the Trustee loan
accounting reports in the investor's assigned loan number order to document the
payment activity on each Option One Mortgage Loan on an individual mortgage loan
basis. With respect to each month, such loan accounting reports shall contain
the following:
(i) With respect to each Scheduled Payment (on both an actual
and scheduled basis with respect to mortgage loan balances and on an
actual basis with respect to paid-through dates), the amount of such
remittance allocable to principal (including a separate breakdown of
any Principal Prepayment, including the amount of any Prepayment
Interest Shortfall);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to scheduled interest;
(iii) the amount of servicing compensation received by Option
One during the prior calendar month;
(iv) the aggregate scheduled principal balance of the Option
One Mortgage Loans;
(v) the aggregate amount of Advances made by Option One
pursuant to Section 5.01;
(vi) the aggregate of any expenses reimbursed to Option One
during the prior calender month pursuant to Section 4.02; and
(vii) the number and aggregate outstanding principal balances
of Option One Mortgage Loans (a) delinquent (1) 30 to 59 days, (2) 60
to 89 days, (3) 90 days or more; (b) as to which foreclosure has
commenced; and (c) as to which REO Property has been acquired.
Section 4.04 COLLECTION OF TAXES; ASSESSMENTS AND SIMILAR ITEMS; ESCROW
ACCOUNTS.
With respect to each Option One Mortgage Loan, to the extent
required by the related Mortgage Note, Option One shall establish and maintain
one or more accounts (each, an "Escrow Account") and deposit and retain therein
all collections from the Mortgagors (or advances by the Servicer) for the
payment of taxes, assessments, hazard insurance premiums or comparable items for
the account of the Mortgagors. Nothing herein shall require Option One 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 Option One out of related collections for any payments made with
respect to each Option One 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 for any Option One Mortgage
Loans 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
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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 4.05 WMBFA CUSTODIAL ACCOUNT.
(a) The Custodial Account established by WMBFA under the
Servicing Agreement shall be an Eligible Account and segregated on the books of
such institution in the name of the Trustee for the benefit of
Certificateholders. WMBFA is authorized to make withdrawals from and deposits to
the Custodial Account for purposes required or permitted by the Servicing
Agreement.
(b) To the extent provided in the Servicing Agreement, amounts
on deposit in a Custodial Account may be invested in Permitted Investments in
the name of the Trustee for the benefit of Certificateholders and, except as
provided in the preceding paragraph, not commingled with any other funds, such
Permitted Investments to mature, or to be subject to redemption or withdrawal,
no later than the date on which such funds are required to be withdrawn for
deposit in the Distribution Account, and shall be held until required for such
deposit. The income earned from any such Permitted Investments shall be paid to
WMBFA under the Servicing Agreement, and the risk of loss of moneys required to
be distributed to the Certificateholders resulting from such investments shall
be borne by and be the risk of WMBFA. WMBFA (to the extent provided in the
Servicing Agreement) shall deposit the amount of any such loss in the Custodial
Account within two Business Days of receipt of notification of such loss but not
later than the second Business Day prior to the Distribution Date on which the
moneys so invested are required to be distributed to the Certificateholders.
(c) As provided in the Servicing Agreement, on or before each
Remittance Date, WMBFA shall withdraw or shall cause to be withdrawn from its
Custodial Account and shall immediately deposit or cause to be deposited in the
Distribution Account amounts representing the following collections and payments
(other than with respect to principal of or interest on the Mortgage Loans due
on or before the Cut-off Date) with respect to each Loan Group:
(i) Scheduled Payments on the Mortgage Loans received or any
related portion thereof advanced by WMBFA pursuant to the Servicing Agreement
which were due on or before the related Due Date, net of the amount thereof
comprising the Servicing Fees;
(ii) Full Principal Prepayments and any Liquidation Proceeds
received by WMBFA with respect to such Mortgage Loans in the related Due Period,
with interest to the date of prepayment or liquidation, net of the amount
thereof comprising the Servicing Fees and LPMI Fees, if any;
(iii) Partial Principal Prepayments received by WMBFA for such
Mortgage Loans in the related Due Period; and
(iv) Any amount to be used as an Advance and the amount of any
Compensating Interest payments.
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(d) Withdrawals may be made from the Custodial Account by
WMBFA as described in the Servicing Agreement and by WMBFA only to make
remittances to the Distribution Account; to reimburse WMBFA for Advances which
have been recovered by subsequent collection from the related Mortgagor; to
remove amounts deposited in error; to remove fees, charges or other such amounts
deposited on a temporary basis; or to clear and terminate the account at the
termination of the Servicing Agreement.
Section 4.06 DISTRIBUTION ACCOUNT.
(a) The Trustee shall establish and maintain in the name of
the Trustee, for the benefit of the Certificateholders, the Distribution Account
as a segregated non-interest bearing trust account or accounts. The Trustee will
deposit in the Distribution Account as identified by the Trustee and as received
by the Trustee, the following amounts:
(i) Any amounts withdrawn from a Custodial Account by
the related Servicer and remitted to the Trustee;
(ii) Any Advance and any Compensating Interest
Payments;
(iii) Any Insurance Proceeds or Liquidation Proceeds
received by or on behalf of the Trustee or which were not deposited in a
Custodial Account;
(iv) The Repurchase Price with respect to any
Mortgage Loans purchased by the Seller 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 Repurchase Price, the Repurchase Price with respect to any
Mortgage Loans purchased by the Depositor pursuant to Section 3.26, and all
proceeds of any Mortgage Loans or property acquired with respect thereto
repurchased by the Depositor or its designee pursuant to Section 10.01;
(v) Any amounts required to be deposited with respect
to losses on investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of
the Trustee and required to be deposited in the Distribution Account pursuant to
this Agreement.
(b) All amounts deposited to the Distribution Account shall be
held by the Trustee in the name of the Trustee in trust for the benefit of the
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 related Servicer to
the Distribution Account.
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(c) The amount at any time credited to the Distribution
Account shall be held uninvested.
Section 4.07 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION
ACCOUNT.
(a) The Trustee will, from time to time make or cause to be
made such withdrawals or transfers from the Distribution Account pursuant to
this Agreement for the following purposes:
(i) On an ongoing basis, Trustee to pay any expenses
recoverable by the Trustee pursuant to this Agreement.
(ii) to reimburse the Trustee as Successor Servicer
or the related Servicer for any Advance or Servicing Advance of its own funds,
the right of the Trustee as Successor Servicer or the related Servicer to
reimbursement pursuant to this subclause (ii) being limited to amounts received
on a particular Mortgage Loan (including, for this purpose, the Purchase Price
therefor, Insurance Proceeds, Liquidation Proceeds and condemnation proceeds)
which represent late payments or recoveries of the principal of or interest on
such Mortgage Loan respecting which such Advance or Servicing Advance was made;
(iii) to reimburse the Trustee or the related
Servicer from Insurance Proceeds or Liquidation Proceeds relating to a
particular Mortgage Loan for amounts expended by the Trustee as Successor
Servicer or the related Servicer in good faith in connection with the
restoration of the related Mortgaged Property which was damaged by an uninsured
cause or in connection with the liquidation of such Mortgage Loan;
(iv) to reimburse the Trustee as Successor Servicer
or the related Servicer from Insurance Proceeds relating to a particular
Mortgage Loan for insured expenses incurred with respect to such Mortgage Loan
and to reimburse the Trustee as Successor Servicer or the related Servicer from
Liquidation Proceeds from a particular Mortgage Loan for Liquidation Expenses
incurred with respect to such Mortgage Loan;
(v) to reimburse the Trustee as Successor Servicer or
the related Servicer for advances of funds pursuant to this Agreement or the
Servicing 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 Trustee as Successor Servicer
or the related Servicer for any Advance or advance, after a Realized Loss has
been allocated with respect to the related Mortgage Loan if the Advance or
advance has not been reimbursed pursuant to clauses (ii) and (v);
(vii) to pay the PMI Insurer Fee to the PMI Insurer,
to pay the Credit Risk Management Fee with respect to the WMBFA Mortgage Loans
to the Seller and to pay the Credit Risk
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Management Fee with respect to the Option One Mortgage Loans to the Credit Risk
Manager; provided, however, that upon the termination of the Credit Risk Manager
pursuant to Section 4.08(b) hereof, the amount of the Credit Risk Management Fee
(or any portion thereof) with respect to the Option One Mortgage Loans
previously payable to the Credit Risk Manager as described herein shall be paid
to the Seller;
(viii) to reimburse the Trustee for expenses, costs
and liabilities incurred by and reimbursable to it pursuant to this Agreement
(including the expenses of the Trustee in connection with a tax audit in
connection with the performance of its obligations pursuant to Section 9.12);
(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 and in the Servicing Agreement;
(xi) to reimburse the Trustee for expenses incurred
in the transfer of servicing responsibilities of a Servicer after the occurrence
and continuance of a Servicer Default to the extent not paid by the terminated
Servicer;
(xii) after the occurrence of an event of default
under the Advance Facility, to reimburse any Advancing Person for any Advances
or Servicing Advances made by such Advancing Person pursuant to Section 5.01(b)
and not reimbursed to such Advancing Person pursuant to Section 4.02;
(xiii) to reimburse the Custodian for expenses, costs
and liabilities incurred or reimbursable to it pursuant to this Agreement or the
related 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 Trustee shall keep and maintain separate accounting,
on a Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (ii) through
(v), inclusive, and (vii) or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by the Trustee
without being deposited in the Distribution Account under Section 4.07.
(c) On each Distribution Date, the Trustee shall distribute
Group I Available Funds, Group II Available Funds, Group III Available Funds,
Group IV Available Funds, Group V Available Funds, Group VI Available Funds, and
Group VII Available Funds in the Distribution Account to the holders of the
Certificates in accordance with Section 5.04.
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Section 4.08 DUTIES OF THE CREDIT RISK MANAGER; TERMINATION.
(a) The Depositor appoints The Murrayhill Company as Credit
Risk Manager. For and on behalf of the Depositor and the Trustee, the Credit
Risk Manager will provide reports and recommendations concerning the Option One
Mortgage Loans that are past due, as to which there has been commencement of
foreclosure, as to which there has been forbearance in exercise of remedies
which are in default, as to which a Mortgagor is the subject of bankruptcy,
receivership, or an arrangement of creditors, or as to which have become REO
Properties. Such reports and recommendations will be based upon information
provided to the Credit Risk Manager pursuant to the Credit Risk Management
Agreement and the Credit Risk Manager shall look solely to Option One for all
information and data (including loss and delinquency information and data) and
loan level information and data relating to the servicing of the Option One
Mortgage Loans. If the Credit Risk Manager is no longer able to perform its
duties hereunder, the Credit Risk Manager may be terminated by the Depositor at
the direction of Certificateholders evidencing not less than 66 2/3% of the
Voting Rights. The Depositor may , at its option, cause the appointment of a
successor Credit Risk Manager. Upon any termination of the Credit Risk Manager
or the appointment of a successor Credit Risk Manager, the Depositor shall give
written notice thereof to Option One, the Trustee, each Rating Agency and the
Credit Risk Manager. Notwithstanding the foregoing, the termination of the
Credit Risk Manager pursuant to this Section 4.08(a) shall not become effective
until the appointment of a successor Credit Risk Manager.
(b) Within six months of the Closing Date, the Seller may, at
its option, terminate the Credit Risk Manager if, in its reasonable judgement,
(i) the value of the servicing rights with respect to the Option One Mortgage
Loans is adversely affected as a result of the presence of the Credit Risk
Manager or (ii) the presence of the Credit Risk Manager impairs the ability of
the Seller to transfer the Servicing Rights with respect to the Option One
Mortgage Loans as permitted by this Agreement. Upon the termination of the
Credit Risk Manager, the Seller may, at its option, cause the Depositor to
appoint a successor Credit Risk Manager. Notice of such termination shall be
provided by the Seller to the Rating Agencies, the Trustee, the Depositor and
the Credit Risk Manager. Upon the appointment of a successor Credit Risk
Manager, the Depositor shall provide written notice thereof to each Rating
Agency, the Trustee and the Credit Risk Manager.
If the Credit Risk Manager is terminated pursuant to this
Section 4.08(b), the Credit Risk Manager shall only be entitled to a fee equal
to 0.0050% with respect to each Option One Mortgage Loan for the one year period
following such termination. After the expiration of such one year period, the
Credit Risk Manager shall not be entitled to the Credit Risk Management Fee or
any portion thereof with respect to any Option One Mortgage Loan. The excess of
the Credit Risk Management Fee with respect to each Option One Mortgage Loan
over the amount payable to the Credit Risk Manager as described in this
paragraph shall be paid to the Seller pursuant to Section 4.07(vii).
Notwithstanding anything to the contrary contained herein, the
Credit Risk Manager shall not be entitled to the Credit Risk Management Fee with
respect to any WMBFA Mortgage Loan.
Section 4.09 LIMITATION UPON LIABILITY OF THE CREDIT RISK MANAGER.
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Neither the Credit Risk Manager, nor any of the directors,
officers, employees or agents of the Credit Risk Manager, shall be under any
liability to the 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 Option One under the
Credit Risk Management Agreement or of errors in judgment; provided, however,
that this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
under this Agreement or the Credit Risk Management Agreement. The Credit Risk
Manager and any director, officer, employee or agent of the Credit Risk Manager
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder, and may
rely in good faith upon the accuracy of information furnished by Option One
pursuant to the Credit Risk Management Agreement in the performance of its
duties thereunder and hereunder.
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ARTICLE V
ADVANCES AND DISTRIBUTIONS
Section 5.01 ADVANCES; ADVANCE FACILITY.
(a) Option One shall make an Advance with respect to any Option
One Mortgage Loan and deposit such Advance in the Distribution Account no later
than 3:00 p.m. Eastern time on the Remittance Date in immediately available
funds. WMBFA shall remit any Advance with respect to a WMBFA as required under
the Servicing Agreement. The related Servicer shall be obligated to make any
such Advance only to the extent that such advance would not be a Nonrecoverable
Advance. If the related 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, the related Servicer shall
deliver (i) to the Trustee 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 Trustee 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, the related Servicer, pursuant to this Agreement or the Servicing
Agreement, as applicable, may (i) cause to be made an appropriate entry in its
records relating to the Custodial Account that any Amounts Held for Future
Distribution has been used by the related Servicer in discharge of its
obligation to make any such Advance and (ii) transfer such funds from the
Custodial Account to the Distribution Account. Any funds so applied and
transferred shall be replaced by the related Servicer by deposit in the
Distribution Account, no later than the close of business on the Remittance Date
immediately preceding the Distribution Date on which such funds are required to
be distributed pursuant to this Agreement.
The related Servicer shall be entitled to be reimbursed from the
related Custodial Account for all Advances of its own funds made pursuant to
this Section or pursuant to the Servicing Agreement, as applicable, as provided
in Section 4.02 or pursuant to the Servicing Agreement. The obligation to make
Advances with respect to any Mortgage Loan shall continue until such 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 or in the Servicing
Agreement.
Subject to and in accordance with the provisions of Article VIII
hereof, in the event that the related Servicer fails to make such Advance, then
the Trustee, as Successor Servicer, 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) Option One is hereby authorized to enter into a facility
with any Person which provides that such Person (an "Advancing Person") may fund
Advances and/or Servicing Advances to
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the Trust Fund under this Agreement, although no such facility shall reduce or
otherwise affect Option One's obligation to fund such Advances and/or Servicing
Advances. If Option One enters into such an Advance Facility pursuant to this
Section 5.01(b), upon reasonable request of the Advancing Person, the Trustee
shall execute a letter of acknowledgment at the written direction of Option One
in form satisfactory to the Trustee, confirming its receipt of notice of the
existence of such Advance Facility. To the extent that an Advancing Person funds
any Advance or any Servicing Advance and provides the Trustee with notice
acknowledged by Option One that such Advancing Person is entitled to
reimbursement, such Advancing Person shall be entitled to receive reimbursement
pursuant to this Agreement for such amount to the extent that Option One would
be entitled to receive reimbursement as described in Section 4.02. Such notice
from the Advancing Person must specify the amount of the reimbursement, the
Section of this Agreement that permits the applicable Advance or Servicing
Advance to be reimbursed and the section(s) of the Advance Facility that entitle
the Advancing Person to request reimbursement from the Trustee, rather than
Option One, and include Option One's acknowledgment thereto or proof of an event
of default under the Advance Facility; provided, however, that the Trustee shall
have no obligation to deal directly with the Advancing Person unless and until
and event of default has occurred and is continuing under the Advance Facility.
The Trustee shall have no duty or liability with respect to any calculation of
any reimbursement to be paid to an Advancing Person and shall be entitled to
rely without independent investigation on the Advancing Person's notice provided
pursuant to this Section 5.01(b). An Advancing Person whose obligations
hereunder are limited to the funding of Advances and/or Servicing Advances shall
not be required to meet the qualifications of a Servicer pursuant to Section
8.02 hereof and will not be deemed to be a subservicer under this Agreement.
(ii) If an Advance Facility is entered into, then Option One
shall reimburse the Advancing Person for such Advance or Servicing Advance made
by such Advancing Person to the same extent that Option One would have been
entitled to reimburse itself for such Advance or Servicing Advance if made by
Option One. Upon the occurrence of an event of default under the Advance
Facility, Option One shall include the amount reimbursable to such Advancing
Person in the applicable remittance to the Trustee made pursuant to Section
4.02. The Trustee is hereby authorized to pay, to the extent funds are
available, to the Advancing Person, reimbursements for Advances and Servicing
Advances from the Distribution Account to the same extent the Servicer would
have been permitted to reimburse itself for such Advances and/or Servicing
Advances in accordance with Section 4.02 had Option One itself funded such
Advance or Servicing Advance. The Trustee is hereby authorized to pay directly
to the Advancing Person such portion of the Servicing Fee as the parties to any
Advance Facility agree.
(iii) All Advances and Servicing Advances made pursuant to the
terms of this Agreement shall be deemed made and shall be reimbursed on a "first
in-first out" (FIFO) basis.
(iv) Other than the obligation of the Trustee to reimbursement
any Advancing Person pursuant to this Section 5.01(b), any Advance Facility
entered into between Option One and an Advancing Person shall be an agreement
between Option One and the Advancing Person only and shall
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not extend to any successor to Option One hereunder. Option One shall promptly
provide written notice to the Trustee of the termination of any Advance
Facility.
(v) 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 Trustee and Option One without the consent of any
Certificateholder, notwithstanding anything to the contrary in this Agreement.
(vi) Any successor to Option One shall have the right to enter
into an Advance Facility with an Advancing Person as described in this Section
5.01(b) to the same extent that Option One pursuant to this Section 5.01(b) may
enter into such an Advance Facility with an Advancing Person.
Section 5.02 COMPENSATING INTEREST PAYMENTS.
(a) In the event that there is a Prepayment Interest Shortfall arising
from a voluntary Principal Prepayment in part or in full by the Mortgagor with
respect to any Option One Mortgage Loan, Option One shall, to the extent of the
Servicing Fee for such Distribution Date, deposit into the Distribution Account,
as a reduction of and to the extent of, the Servicing Fee for such Distribution
Date, 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, Option One shall not be entitled to any
recovery or reimbursement from the Depositor, the Trustee, the Seller, the Trust
Fund or the Certificateholders.
(b) WMBFA shall remit any required Compensating Interest Payments to
the Distribution Account on the Remittance Date as required by the Servicing
Agreement.
Section 5.03 REMIC DISTRIBUTIONS.
On each Distribution Date the Trustee, shall be deemed to allocate
distributions to the REMIC I Regular Interests in accordance with Section 5.07
hereof.
Section 5.04 DISTRIBUTIONS.
(a) On each Distribution Date, an amount equal to the Group I
Available Funds, the Group II Available Funds, the Group III Available Funds,
Group IV Available Funds, Group V Available Funds, Group VI Available Funds and
the Group VII Available Funds for such Distribution Date shall be withdrawn by
the Trustee from the Distribution Account and distributed as directed in
accordance with the Remittance Report for such Distribution Date, in the
following order of priority:
(i) on each Distribution Date, the Group I Available Funds will be
distributed as follows:
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FIRST, to the Class A1 Certificates and the Class AIO
Certificates, on a pro rata basis, the Accrued Certificate Interest on each such
Class for such Distribution Date; provided, however, that for the purpose of
distributions to the Class AIO Certificates under this clause, only the portion
of the Class AIO Notional Amount derived from the Group I Mortgage Loans will be
used to calculate these distributions;
SECOND, to the Class A1 Certificates and Class AIO Certificates,
on a pro rata basis, any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates, to the extent of remaining Group
I Available Funds; provided, however, that for the purpose of distributions to
the Class AIO Certificates under this clause, only the portion of the Class AIO
Notional Amount derived from the Group I Mortgage Loans will be used to
calculate these distributions; and
THIRD, concurrently, (i) to the Class A1 Certificates, in
reduction of the Certificate Principal Balance thereof, the Senior Optimal
Principal Amount for Group I for such Distribution Date and (ii) to the Class
APO Certificates, the Class APO Certificate Principal Distribution Amount for
Group I for such Distribution Date, in each case, to the extent of remaining
Group I Available Funds, until the Certificate Principal Balance of each such
Class has been reduced to zero.
(ii) On each Distribution Date, the Group II Available Funds
will be distributed as follows:
FIRST, to the Class A2 Certificates and the Class AIO
Certificates, on a pro rata basis, the Accrued Certificate Interest on each such
Class for such Distribution Date; provided, however, that for the purpose of
distributions to the Class AIO Certificates under this clause, only the portion
of the Class AIO Notional Amount derived from the Group II Mortgage Loans will
be used to calculate these distributions;
SECOND, to the Class A2 Certificates and Class AIO Certificates,
on a pro rata basis, any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates, to the extent of remaining Group
II Available Funds; provided, however, that for the purpose of distributions to
the Class AIO Certificates under this clause, only the portion of the Class AIO
Notional Amount derived from the Group II Mortgage Loans will be used to
calculate these distributions;
THIRD, concurrently, (i) to the Class A2 Certificates, in
reduction of the Certificate Principal Balance thereof, the Senior Optimal
Principal Amount for Group II for such Distribution Date and (ii) to the Class
APO Certificates, the Class APO Certificate Principal Distribution Amount for
Group II for such Distribution Date, in each case, to the extent of remaining
Group II Available Funds, until the Certificate Principal Balance of each such
Class has been reduced to zero.
(iii) on each Distribution Date, the Group III Available Funds
will be distributed as follows:
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FIRST, to the Class A3 Certificates and the Class AIO
Certificates, on a pro rata basis, the Accrued Certificate Interest on each such
Class for such Distribution Date; provided, however, that for the purpose of
distributions to the Class AIO Certificates under this clause, only the portion
of the Class AIO Notional Amount derived from the Group III Mortgage Loans will
be used to calculate these distributions;
SECOND, to the Class A3 Certificates and Class AIO Certificates,
on a pro rata basis, any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates, to the extent of remaining Group
III Available Funds; provided, however, that for the purpose of distributions to
the Class AIO Certificates under this clause, only the portion of the Class AIO
Notional Amount derived from the Group III Mortgage Loans will be used to
calculate these distributions; and
THIRD, concurrently, (i) to the Class A3 Certificates, in
reduction of the Certificate Principal Balance thereof, the Senior Optimal
Principal Amount for Group III for such Distribution Date and (ii) to the Class
APO Certificates, the Class APO Certificate Principal Distribution Amount for
Group III for such Distribution Date, in each case, to the extent of remaining
Group III Available Funds, until the Certificate Principal Balance of each such
Class has been reduced to zero.
(iv) on each Distribution Date, the Group IV Available Funds
will be distributed as follows:
FIRST, to the Class A4 Certificates and the Class AIO
Certificates, on a pro rata basis, the Accrued Certificate Interest on each such
Class for such Distribution Date; provided, however, that for the purpose of
distributions to the Class AIO Certificates under this clause, only the portion
of the Class AIO Notional Amount derived from the Group IV Mortgage Loans will
be used to calculate these distributions;
SECOND, to the Class A4 Certificates and Class AIO Certificates,
on a pro rata basis, any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates, to the extent of remaining Group
IV Available Funds; provided, however, that for the purpose of distributions to
the Class AIO Certificates under this clause, only the portion of the Class AIO
Notional Amount derived from the Group IV Mortgage Loans will be used to
calculate these distributions; and
THIRD, concurrently, (i) to the Class A4 Certificates, in
reduction of the Certificate Principal Balance thereof, the Senior Optimal
Principal Amount for Group IV for such Distribution Date and (ii) to the Class
APO Certificates, the Class APO Certificate Principal Distribution Amount for
Group IV for such Distribution Date, in each case, to the extent of remaining
Group IV Available Funds, until the Certificate Principal Balance of each such
Class has been reduced to zero.
(v) on each Distribution Date, the Group V Available Funds will
be distributed as follows:
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FIRST, to the Class A5 Certificates and the Class AIO
Certificates, on a pro rata basis, the Accrued Certificate Interest on each such
Class for such distribution date; provided, however, that for the purpose of
distributions to the Class AIO Certificates under this clause, only the portion
of the Class AIO Notional Amount derived from the Group V Mortgage Loans will be
used to calculate these distributions;
SECOND, to the Class A5 Certificates and Class AIO Certificates,
on a pro rata basis, any Accrued Certificate Interest thereon remaining
undistributed from previous distribution dates, to the extent of remaining Group
V Available Funds; provided, however, that for the purpose of distributions to
the Class AIO Certificates under this clause, only the portion of the Class AIO
Notional Amount derived from the Group V Mortgage Loans will be used to
calculate these distributions; and
THIRD, concurrently, (i) to the Class A5 Certificates, in
reduction of the certificate principal balance thereof, the Senior Optimal
Principal Amount for Group V for such Distribution Date and (ii) to the Class
APO Certificates, the Class APO Certificate Principal Distribution Amount for
Group V for such Distribution Date, in each case, to the extent of remaining
Group V Available Funds, until the certificate principal balance of each such
class has been reduced to zero.
(vi) on each Distribution Date, the Group VI Available Funds
will be distributed as follows:
FIRST, to the Class A6 Certificates and the Class AIO
Certificates, on a pro rata basis, the Accrued Certificate Interest on each such
Class for such distribution date; provided, however, that for the purpose of
distributions to the Class AIO Certificates under this clause, only the portion
of the Class AIO Notional Amount derived from the Group VI Mortgage Loans will
be used to calculate these distributions;
SECOND, to the Class A6 Certificates and Class AIO Certificates,
on a pro rata basis, any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates, to the extent of remaining Group
VI Available Funds; provided, however, that for the purpose of distributions to
the Class AIO Certificates under this clause, only the portion of the Class AIO
Notional Amount derived from the Group VI Mortgage Loans will be used to
calculate these distributions; and
THIRD, concurrently, (i) to the Class A6 Certificates, in
reduction of the Certificate Principal Balance thereof, the Senior Optimal
Principal Amount for Group VI for such Distribution Date and (ii) to the Class
APO Certificates, the Class APO Certificate Principal Distribution Amount for
Group VI for such Distribution Date, in each case, to the extent of remaining
Group VI Available Funds, until the Certificate Principal Balance of each such
Class has been reduced to zero.
(vii) on each Distribution Date, the Group VII Available Funds
will be distributed as follows:
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FIRST, to the Class A7 Certificates and the Class AIO
Certificates, on a pro rata basis, the Accrued Certificate Interest on each such
Class for such Distribution Date; provided, however, that for the purpose of
distributions to the Class AIO Certificates under this clause, only the portion
of the Class AIO Notional Amount derived from the Group VII Mortgage Loans will
be used to calculate these distributions;
SECOND, to the Class A7 Certificates and Class AIO Certificates,
on a pro rata basis, any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates, to the extent of remaining Group
VII Available Funds; provided, however, that for the purpose of distributions to
the Class AIO Certificates under this clause, only the portion of the Class AIO
Notional Amount derived from the Group VII Mortgage Loans will be used to
calculate these distributions; and
THIRD, to the Class A7 Certificates, in reduction of the
Certificate Principal Balance thereof, the Senior Optimal Principal Amount for
Group VII for such Distribution Date to the extent of remaining Group VII
Available Funds, until the Certificate Principal Balance thereof has been
reduced to zero.
(b) On each Distribution Date after distributions pursuant to
clauses (a) (i) through (a)(vii) above, to the Class APO Certificates, the Class
APO Certificate Deferred Amount, provided, that (i) on any Distribution Date,
distributions pursuant to this clause (b) shall not (x) exceed the Subordinate
Optimal Principal Amount for such Distribution Date or (y) reduce the
Certificate Principal Balance of the Class APO Certificates and (ii) no
distribution will be made in respect of the Class APO Certificate Deferred
Amount after the Cross-over Date.
(c) Except as provided in paragraph (d) below, on each
Distribution Date on or prior to the Cross-Over Date, an amount equal to the sum
of the remaining Group Available Funds after the distributions in clauses (a)
(i) through (a)(vii) and (b) above will be distributed sequentially, in the
following order, to the Class M, Class B1, Class B2, Class B3, Class B4 and
Class B5 Certificates, in each case up to an amount equal to and in the
following order: (a) the Accrued Certificate Interest thereon for such
Distribution Date, (b) any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates and (c) such Class's Allocable
Share, if any, for such Distribution Date, in each case, to the extent of the
sum of the remaining Group Available Funds for all Loan Groups.
(d) If on any Distribution Date on which the aggregate
Certificate Principal Balance of any Class or Classes of Senior Certificates
(other than Class APO Certificates) would be greater than the aggregate Stated
Principal Balance of the Mortgage Loans in its related Loan Group (other than
the applicable PO Percentage of the related Discount Mortgage Loans) and any
Subordinated Certificates are still outstanding in each case after giving effect
to distributions to be made on such Distribution Date, (i) 100% of amounts
otherwise allocable to the Subordinated Certificates in respect of principal
will be distributed to such Class or Classes of Senior Certificates in reduction
of the Certificate Principal balance thereof, until the aggregate Certificate
Principal Balance of such Class or Classes of Senior Certificates is an amount
equal to the aggregate Stated Principal Balance of the
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Mortgage Loans in its related Loan Group (other than the applicable PO
Percentage of the related Discount Mortgage Loans), and (ii) the Accrued
Certificate Interest otherwise allocable to the Subordinated Certificates on
such Distribution Date will be reduced, if necessary, and distributed to such
Class or Classes of Senior Certificates in an amount equal to the Accrued
Certificate Interest for such Distribution Date on the excess of (x) the
aggregate Certificate Principal Balance of such Class or Classes of Senior
Certificates over (y) the aggregate Stated Principal Balance of the Mortgage
Loans in the related Loan Group (other than the applicable PO Percentage of the
related Discount Mortgage Loans). Any such reduction in the Accrued Certificate
Interest on the Subordinated Certificates will be allocated first to the
certificates having the lowest payment priority, in this case commencing with
the Class B5 Certificates.
(e) On each Distribution Date prior to the Cross-Over Date,
funds otherwise payable to the Subordinated Certificates shall be applied to the
payment of the Senior Certificates (i) first, to pay any Accrued Certificate
Interest on the Senior Certificates remaining unpaid, (ii) second, to pay Class
APO Certificate Deferred Amounts to the Class APO Certificates, (iii) third, to
pay principal of one or more Undercollateralized Groups of Senior Certificates
and (iv) fourth to maintain subordination levels under limited circumstances
where one or more classes of Senior Certificates have been paid in full.
To the extent any Accrued Certificate Interest with respect to any Class
of Senior Certificates remains unpaid, the Group Available Funds remaining after
payments of principal and interest on the Senior Certificates related to such
Loan Groups will be applied to cover such unpaid Accrued Certificate Interest,
and, to the extent payable to more than one Class of Senior Certificates, will
be applied pro rata based on the amounts of such unpaid Accrued Certificate
Interest to the extent there are insufficient funds to pay such amounts in full.
Such amounts will be paid to the Senior Certificates in accordance with the
priorities set forth in this Section 5.04.
To the extent of any unpaid Class APO Certificate Deferred Amount, the
Subordinate Principal Distribution Amount (the amount which would be payable as
principal to such Subordinated Certificates absent such cross-collateralization,
other than in respect of amounts applied to pay unpaid Accrued Certificate
Interest on the Senior Certificates as described in the preceding paragraph)
will be applied to pay any such unpaid Class APO Certificate Deferred Amount.
If on any Distribution Date there exist one or more Undercollateralized
Groups, then all amounts otherwise distributable as principal on the
Subordinated Certificates as the Subordinate Principal Distribution Amount
(other than amounts needed to pay any Class APO Certificate Deferred Amount as
described above) will be paid to those Undercollateralized Groups as principal
to the related Senior Certificates (other than the Class APO Certificates) in
accordance with the priorities set forth in this Section 5.04 until the
aggregate Certificate Principal Balance of such Senior Certificates equals the
aggregate principal balance of the related Loan Group as of the following
Distribution Date (net of the PO Percentage of the Discount Mortgage Loans in
such Loan Group).
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On or after the date on which the Certificate Principal Balances of the
Senior Certificates of a Loan Group have been reduced to zero, amounts otherwise
distributable as principal on the Subordinated Certificates, up to the
applicable Apportioned Subordinate Principal Distribution Amount (representing
generally the portion of the Subordinate Principal Distribution Amount
attributable to Mortgage Loans in the Loan Group with respect to which the
Senior Certificates have been paid in full) will be paid pro rata as principal
to the remaining Senior Certificates of the other Loan Groups (other than the
Class APO Certificates) in accordance with the priorities set forth in this
Section 5.04 for the applicable Loan Group, provided that on such Distribution
Date (a) the Aggregate Subordinate Percentage for such Distribution Date is less
than twice the initial Aggregate Subordinate Percentage or (b) the aggregate
Stated Principal Balance of the Mortgage Loans delinquent 60 days or more as a
percentage of the aggregate Group Subordinate Amount is greater than or equal to
50%.
Any application of the Subordinate Principal Distribution Amount pursuant
to the preceding three paragraphs will reduce distributions of such amount in
reverse order of priority pursuant to priorities set forth in this Section 5.04.
On each Distribution Date, any available funds remaining after payment of
interest and principal to the Classes of Certificates entitled thereto, as
described above, will be distributed to the Class R Certificates; provided that
if on any Distribution Date there are any Group Available Funds remaining after
payment of interest and principal to a Class or Classes of Certificates entitled
thereto, such amounts will be distributed to the other Classes of Certificates
(other than the Class AIO Certificates and the Class APO Certificates), pro
rata, based upon their Certificate Principal Balances, until all amounts due to
all Classes of Certificates have been paid in full, before any amounts are
distributed to the Class R Certificates. It is not anticipated that there will
be any significant amounts remaining for such distribution.
(f) Subject to Section 10.02 hereof respecting the final
distribution, on each Distribution Date the Trustee shall make distributions to
each Certificateholder 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 Trustee at least 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 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 Certificates registered in the name of a Depository shall be
made to such Depository in immediately available funds.
(g) On each Distribution Date, the Trustee shall prepare the
Monthly Statement to Certificateholders for the related Distribution Date (the
"Monthly Statement").
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Section 5.05 ALLOCATION OF REALIZED LOSSES.
(a) On or prior to each Determination Date, the Trustee shall
determine the amount of any Realized Loss in respect of each Mortgage Loan that
occurred during the immediately preceding calendar month.
(b) With respect to any Certificates on any Distribution Date,
the principal portion of each Realized Loss on a Mortgage Loan shall be
allocated as follows:
(i) The applicable PO Percentage of any such Realized Loss on a
related Discount Mortgage Loan shall be allocated to the Class APO
Certificates;
(ii) The applicable Non-PO Percentage of any such Realized Loss
on a Mortgage Loan in each Loan Group shall be allocated as follows:
FIRST, to the Class B5 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
SECOND, to the Class B4 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
THIRD, to the Class B3 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
FOURTH, to the Class B2 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
FIFTH, to the Class B1 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
SIXTH, to the Class M Certificates until the Certificate
Principal Balance thereof has been reduced to zero; and
SEVENTH, to the Classes of related Senior Certificates, pro
rata, in accordance with their Certificate Principal
Balances;
(c) Notwithstanding the foregoing clause (b), no such
allocation of any Realized Loss shall be made on a Distribution Date to any
Class of Certificates to the extent that such allocation would result in the
reduction of the aggregate Certificate Principal Balances of all the
Certificates as of such Distribution Date, after giving effect to all
distributions and prior allocations of Realized Losses on such date, to an
amount less than the aggregate Stated Principal Balance of all of the Mortgage
Loans as of the first day of the month of such Distribution Date (such
limitation, the "Loss Allocation Limitation").
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(d) Any Realized Losses allocated to a Class of Certificates
shall be allocated among the Certificates of such Class in proportion to their
respective Certificate Principal Balances. Any allocation of Realized Losses
shall be accomplished by reducing the Certificate Principal Balances of the
related Certificates on the related Distribution Date.
(e) Realized Losses shall be allocated on the Distribution Date
in the month following the month in which such loss was incurred and, in the
case of the principal portion thereof, after giving effect to distributions made
on such Distribution Date, except that the aggregate amount of Realized Losses
to be allocated to the Class APO Certificates on any Distribution Date through
the Cross-Over Date will be taken into account in determining distributions in
respect of the Class PO Certificate Deferred Amount for such Distribution Date.
(f) On each Distribution Date, the Trustee shall determine the
Subordinate Certificate Writedown Amount. Any such Subordinate Certificate
Writedown Amount shall effect a corresponding reduction in the Certificate
Principal Balance of the Subordinated Certificates, in the reverse order of
their which reduction shall occur on such Distribution Date after giving effect
to distributions made on such Distribution Date.
(g) On each Distribution Date, on or prior to the Cross-Over
Date the Trustee shall determine the Class APO Certificate Deferred Payment
Writedown Amount, if any. Any such Class APO Certificate Deferred Payment
Writedown Amount shall effect a corresponding reduction in the Certificate
Principal Balance of the Subordinated Certificates in the reverse order of their
payment priority beginning with the Class B5 Certificates.
(h) Any Net Interest Shortfall will be allocated among the
Classes of Certificates in proportion to the respective amounts of Accrued
Certificate Interest that would have been allocated thereto in the absence of
such Net Interest Shortfall for such Distribution Date. The interest portion of
any Realized Losses with respect to the Mortgage Loans occurring on or prior to
the Cross-Over Date will not be allocated among any Certificates, but will
reduce the amount of Available Funds on the related Distribution Date. As a
result of the subordination of the Subordinated Certificates in right of
distribution, such Realized Losses will be borne by the Subordinated
Certificates in inverse order of their numerical Class designations. Following
the Cross-Over Date, the interest portion of Realized Losses on the Mortgage
Loans in any Loan Group will be allocated to the related Senior Certificates
(other than the Class AIO and Class APO Certificates).
(i) Notwithstanding anything to the contrary contained herein,
if on any Distribution Date the Trustee discovers, based solely on the reports
delivered by the Servicers under this Agreement and the Servicing Agreement,
that any Subsequent Recoveries have been collected by any Servicer with respect
to the related Mortgage Loans, the Trustee shall reinstate the amount of the
Certificate Principal Balance of the Outstanding Class of Certificates with the
lowest payment priority which was reduced as a result of the allocation of
Realized Losses on such Distribution Date or any prior Distribution Date. To the
extent that the amount of the Subsequent Recoveries collected by the Servicers
exceed the amount of Realized Losses allocated to the Outstanding Class of
Certificates since
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the Closing Date, the Trustee shall (i) reinstate and reissue any retired
Private Certificate, beginning with the retired Class of Private Certificates
having the most senior payment priority, for which Realized Losses were
allocated on any Distribution Date since the Closing Date and (ii) use
reasonable efforts to, to the extent permitted by the Depository, reinstate and
reissue any retired Book-Entry Certificate, beginning with the retired Class of
Book-Entry Certificates having the most senior payment priority, for which
Realized Losses were allocated on any Distribution Date since the Closing Date.
Section 5.06 MONTHLY STATEMENTS TO CERTIFICATEHOLDERS.
(a) Not later than each Distribution Date, the Trustee shall
prepare and make available to each Holder of Certificates and the Depositor a
statement setting forth for the Certificates:
(i) 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 and (B) the
aggregate of all scheduled payments of principal included therein;
(ii) the amount of such distribution to Holders of each Class
(other than Class APO) allocable to interest;
(iii) the Certificate Principal Balance or Certificate Notional
Balance of each Class after giving effect (i) to all distributions
allocable to principal on such Distribution Date and (ii) the allocation
of any Applied Realized Loss Amounts for such Distribution Date;
(iv) the aggregate of the Stated Principal Balances of all of
the Mortgage Loans and of the Mortgage Loans in each Loan Group for the
following Distribution Date;
(v) the related amount of the Servicing Fees paid to or
retained by the Servicers for the related Due Period;
(vi) the Pass-Through Rate for each Class of Certificates with
respect to the current Interest Accrual Period;
(vii) reserved;
(viii) the number and aggregate principal amounts of Mortgage
Loans in each Loan Group for each such Loan Group and the mortgage pool
(A) Delinquent (exclusive of Mortgage Loans in foreclosure and
bankruptcy) (1) 31 to 60 days, (2) 61 to 90 days and (3) 91 or more days,
(B) in foreclosure and delinquent (1) 31 to 60 days, (2) 61 to 90 days
and (3) 91 or more days and (C) in bankruptcy and delinquent (1) 31 to 60
days, (2) 61 to 90 days and (3) 91 or more days, in each case as of the
close of business on the last day of the calendar month preceding such
Distribution Date;
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(ix) with respect to any Mortgage Loan that was liquidated
during the preceding calendar month in each Loan Group and the mortgage
pool, the loan number and 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;
(x) the total number and principal balance of any real estate
owned or REO Properties in each Loan Group as of the close of business on
the Determination Date preceding such Distribution Date;
(xi) the three month rolling average of the percent equivalent
of a fraction, the numerator of which is the aggregate stated Principal
Balance of the Mortgage Loans that are 60 days or more delinquent or are
in bankruptcy or foreclosure or are REO Properties, and the denominator
of which is the aggregate Stated Principal Balance of all of the Mortgage
Loans as of the last day of such Distribution Date; and
(xii) the Realized Losses for each Loan Group during the related
Prepayment Period and the cumulative Realized Losses for each Loan Group
and the mortgage pool through the end of the preceding month.
The Trustee 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 Trustee's internet
website. The Trustee's internet website shall initially be located at
"xxx.xxxxxxxxxxxxx.xxx/xxxxxx". Assistance in using the website can be obtained
by calling the Securities Administrator's customer service desk at (877)
722-1095. 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.
(b) The Trustee's responsibility for making the above
information available to the Certificateholders is limited to the availability,
timeliness and accuracy of the information derived from the Depositor, the
Servicers and the Credit Risk Manager. The Trustee will make available a copy of
each statement provided pursuant to this Section 5.06 to each Rating Agency.
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished upon request to each
Person who at any time during the calendar year was a Certificateholder, a
statement containing the information set forth in clauses (a)(i) and (a)(ii) of
this Section 5.06 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
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(d) Upon filing with the Internal Revenue Service, the Trustee
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 9.12.
Section 5.07 REMIC DESIGNATIONS AND REMIC I ALLOCATIONS.
(a) The Trustee shall elect that each of REMIC I and REMIC II
and 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 assets of REMIC I shall include the Mortgage Loans and all
interest owing in respect of and principal due thereon, the Distribution
Account, the Custodial Accounts
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maintained by the Servicers, any REO Property, any proceeds of the foregoing and
any other assets subject to this Agreement. The REMIC I Regular Interests shall
constitute the assets of REMIC II.
(b) On each Distribution Date, the Trustee shall cause the
Group I Available Funds, the Group II Available Funds, the Group III Available
Funds, the Group IV Available Funds, the Group V Available Funds, the Group VI
Available Funds and the Group VII Available Funds, in the following order of
priority and in accordance with the Remittance Report, to be distributed by
REMIC I to REMIC II on account of the REMIC I Regular Interests or withdrawn
from the Distribution Account and distributed to the Holders of the Class R
Certificates, as the case may be:
(i) Uncertificated Accrued Interest on the Uncertificated REMIC
I Regular Interests for such Distribution Date, plus any
Uncertificated Accrued Interest thereon remaining unpaid from any
previous Distribution Date; and
(ii) In accordance with the priorities set forth in Section
6.06(c), an amount equal to the sum of the amounts distributable
in respect of principal on the REMIC II Certificates (other than
the Class AIO Certificates) under Section 6.04.
(c) The amount described in Section 6.06(b)(ii) shall be deemed
distributed as follows:
FIRST, to each REMIC I Regular Interest ending with the
designation "SUB," so that the Uncertificated Principal Balance of each such
REMIC I Regular Interest is equal to 0.01% of the excess of (x) the aggregate
Scheduled Principal Balance of the Mortgage Loans in the related Loan Group over
(y) the Certificate Principal Balance of the Senior Certificates (other than the
Class AIO and Class APO Certificates) and the applicable portion of the Class
APO Certificates in the related Loan Group; provided, however, that if any such
excess is a larger number than in the preceding distribution period, the least
amount of principal shall be deemed distributed to such REMIC I Regular
Interests such that the REMIC I Subordinated Balance Ratio is maintained;
provided, further that all distributions on such REMIC I Regular Interests shall
be deemed to be from principal received on Mortgage Loans in the related Loan
Group;
SECOND, REMIC I Regular Interest LT-1PO shall be deemed
distributed a portion of the principal received on the Discount Mortgage Loans
in Loan Group I in an amount equal to the amount distributed on the applicable
portion of the Class APO Certificates on such Distribution Date, REMIC I Regular
Interest LT-2PO shall be deemed distributed a portion of the principal received
on the Discount Mortgage Loans in Loan Group II in an amount equal to the amount
distributed on the applicable portion of the Class APO Certificates on such
Distribution Date, REMIC I Regular Interest LT-3PO shall be deemed distributed a
portion of the principal received on the Discount Mortgage Loans in Loan Group
III in an amount equal to the amount distributed on the applicable portion of
the Class APO Certificates on such Distribution Date, REMIC I Regular Interest
LT-4PO shall be deemed distributed a portion of the principal received on the
Discount Mortgage Loans in Loan Group IV in an amount equal to the amount
distributed on the applicable portion of the Class APO Certificates on such
Distribution Date, REMIC I Regular Interest LT-5PO shall be deemed distributed a
portion of the
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principal received on the Discount Mortgage Loans in Loan Group V in an amount
equal to the amount distributed on the applicable portion of the Class APO
Certificates on such Distribution Date, REMIC I Regular Interest LT-6PO shall be
deemed distributed a portion of the principal received on the Discount Mortgage
Loans in Loan Group VI in an amount equal to the amount distributed on the
applicable portion of the Class APO Certificates on such Distribution Date; and
THIRD, any remaining principal received on Mortgage Loans in each
Loan Group shall be deemed distributed to the related REMIC I Regular Interest
ending with the designation "ZZZ."
(d) In determining from time to time the REMIC I Regular
Interest distribution amounts, Realized Losses on the Mortgage Loans in Loan
Group I allocated to the REMIC II Regular Interests shall be allocated to the
REMIC I Regular Interests as follows:
FIRST, to each REMIC I Regular Interest ending with the
designation "SUB," so that the Uncertificated Principal Balance of each such
REMIC I Regular Interest is equal to 0.01% of the excess of (x) the aggregate
Scheduled Principal Balance of the Mortgage Loans in the related Loan Group over
(y) the Certificate Principal Balance of the Senior Certificates (other than the
Class AIO and Class APO Certificates) and the applicable portion of the Class
APO Certificates in the related Loan Group; provided, however, that if any such
excess is a larger number than in the preceding distribution period, the least
amount of Realized Losses principal shall be applied to such REMIC I Regular
Interests such that the REMIC I Subordinated Balance Ratio is maintained;
provided, further that all Realized Losses applied to such REMIC I Regular
Interests shall be deemed to be Realized Losses on Mortgage Loans in the related
Loan Group;
SECOND, Realized Losses from Loan Group I, Loan Group II, Loan
Group III, Loan Group IV, Loan Group V and Loan Group VI applied to the Class
APO Certificates shall be deemed applied to REMIC I Regular Interest LT-1PO,
REMIC I Regular Interest LT-2PO, REMIC I Regular Interest LT-3PO, REMIC I
Regular Interest LT-4PO, REMIC I Regular Interest LT-5PO and REMIC I Regular
Interest LT-6PO, respectively; and
THIRD, any remaining Realized Losses with respect to Mortgage
Loans in each Loan Group shall be applied to the related REMIC I Regular
Interest ending with the designation "ZZZ."
(e) Notwithstanding the deemed distributions on the REMIC I
Regular Interests described in this Section 5.07, distributions of funds from
the Distribution Account shall be made only in accordance with Section 6.05.
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ARTICLE VI
THE CERTIFICATES
Section 6.01 THE CERTIFICATES.
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:
Minimum Integral Multiple in Original Certificate
Class Denomination Excess-of-Minimum Principal-Balance Pass-Through Rate
----- ------------ ----------------- ----------------- -----------------
A1 $25,000 $1,000 $ 23,492,000 Class A1 Pass-Through Rate
A2 $25,000 $1,000 $ 44,220,000 Class A2 Pass-Through Rate
A3 $25,000 $1,000 $ 30,365,000 Class A3 Pass-Through Rate
A4 $25,000 $1,000 $ 52,811,000 Class A4 Pass-Through Rate
A5 $25,000 $1,000 $ 22,152,000 Class A5 Pass-Through Rate
A6 $25,000 $1,000 $ 9,375,000 Class A6 Pass-Through Rate
A7 $25,000 $1,000 $ 11,035,000 Class A7 Pass-Through Rate
APO $25,000 $1,000 $1,780,192.97 N/A
AIO $25,000 $1,000 N/A Class AIO Pass-Through Rate
M $25,000 $1,000 $ 6,525,000 Class M Pass-Through Rate
B1 $25,000 $1,000 $ 3,157,000 Class B Pass-Through Rate
B2 $25,000 $1,000 $ 1,789,000 Class B Pass-Through Rate
B3 $25,000 $1,000 $ 1,684,000 Class B Pass-Through Rate
B4 $25,000 $1,000 $ 948,000 Class B Pass-Through Rate
B5 $25,000 $1,000 $1,157,815.65 Class B Pass-Through Rate
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer upon the written
order of the Depositor. Certificates bearing the manual or facsimile signatures
of individuals who were, at the time when such signatures were affixed,
authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such authentication and delivery. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate the countersignature
of the Trustee by manual signature, and such countersignature upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly countersigned and delivered hereunder. All
Certificates shall be dated the date of their countersignature. On the Closing
Date, the Trustee shall authenticate the Certificates to be issued at the
written direction of the Depositor, or any affiliate thereof.
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The Depositor shall provide, or cause to be provided, to the
Trustee on a continuous basis, an adequate inventory of Certificates to
facilitate transfers.
Section 6.02 CERTIFICATE REGISTER; REGISTRATION OF TRANSFER
AND EXCHANGE OF CERTIFICATES.
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 6.09 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of Transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
Transfer of any Certificate, the Trustee 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 Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee 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 Trustee 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 Trustee in
accordance with the Trustee'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 Trustee 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
Trustee 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 Seller, 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
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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 Trustee 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 Trustee, the Depositor and the Seller 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 Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee 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 Trustee to the effect that the purchase or holding of such
ERISA Restricted Certificate will not result in any prohibited transactions
under ERISA or Section 4975 of the Code and will not subject the Trustee or the
Depositor to any obligation in addition to those expressly undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Trustee or
the Depositor or (iii) in the case of a Class B3, Class B4 or Class B5
Certificate, a representation (or, in the case of book entry certificate, a
deemed representation) that the proposed transfer and holding of the Certificate
and the servicing, management, and operation of the trust and its assets (A)
will not result in any prohibited transaction which is not covered under an
individual or class prohibited transaction exemption, including, but not limited
to, prohibited transaction exemption ("PTE") 84-14, XXX 00-00, XXX 00-0, XXX
00-00, XXX 00-00 or Section 401(c) of ERISA and the regulations promulgated
thereunder and (B) will not give rise to any additional fiduciary duties on the
part of the Depositor, the Trustee 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 without the delivery
to the Trustee of an Opinion of Counsel satisfactory to the Trustee described
above 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 Trustee
an Opinion of Counsel meeting the requirements of clause (ii) of the first
sentence of this paragraph. The Trustee shall not be required to monitor,
determine or inquire as to compliance with the transfer restrictions with
respect to any ERISA Restricted Certificate that is a Book-Entry Certificate,
and the Trustee shall not have any liability for transfers of any such
Book-Entry Certificates made through the book-entry facilities of any Depository
or between or among participants of the Depository or Certificate Owners made in
violation of the transfer restrictions set forth herein. The Trustee 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
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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
Trustee 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 Trustee shall be paid
and delivered by the Trustee 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 Class M or Class B1 or Class B2
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of that certificate or interest therein,
that either (i) it is not a Plan or investing with "Plan Assets", (ii) it has
acquired and is holding such certificate in reliance on the Exemption, and that
it understands that there are certain conditions to the availability of the
Exemption, including that the certificate must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by S&P, Fitch or Xxxxx'x
Investors Service, Inc., and the certificate is so rated or (iii) (1) it is an
insurance company, (2) the source of funds used to acquire or hold the
certificate or interest therein is an "insurance company general account," as
such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied.
(c) 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:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee
under subparagraph (b) above, the Trustee shall have been furnished with
an affidavit (a "Transfer Affidavit") of the initial owner or the
proposed transferee in the form attached hereto as Exhibit D.
(iii) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (A) to obtain a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer its
Ownership Interest in a Residual Certificate, (B) to obtain a Transfer
Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a Residual
Certificate and (C) not to Transfer its Ownership Interest in a Residual
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Certificate or to cause the Transfer of an Ownership Interest in a
Residual Certificate to any other Person if it has actual knowledge that
such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of this
Section 6.02(c) shall be absolutely null and void and shall vest no
rights in the purported Transferee. If any purported transferee shall
become a Holder of a Residual Certificate in violation of the provisions
of this Section 6.02(c), then the last preceding Permitted Transferee
shall be restored to all rights as Holder thereof retroactive to the date
of registration of Transfer of such Residual Certificate. The Trustee
shall be under no liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not permitted by
Section 6.02(b) and this Section 6.02(c) 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 so long as
the Transfer was registered after receipt of the related Transfer
Affidavit. The Trustee shall be entitled but not obligated to recover
from any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such time.
Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
The restrictions on Transfers of a Residual Certificate set forth
in this Section 6.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trustee or the Seller to the effect
that the elimination of such restrictions will not cause REMIC I and/or REMIC
II, as applicable, to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement that, based on an Opinion of Counsel furnished to
the Trustee, is reasonably necessary (a) to ensure that the record ownership of,
or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate that is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and
opinions referred to above in this Section 7.02 shall not be an expense of the
Trust Fund, the Trustee, the Depositor or the Seller.
Section 6.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and of the ownership thereof and (b) there is delivered
to the Trustee such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Trustee that such
Certificate has been
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acquired by a bona fide purchaser, the Trustee shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like Class, tenor and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 6.03, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. Any replacement Certificate issued pursuant to this Section 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
Trustee under the terms of this Section 7.03 shall be canceled and destroyed by
the Trustee in accordance with its standard procedures without liability on its
part.
Section 6.04 PERSONS DEEMED OWNERS.
The Trustee and any agent of the Trustee 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 neither the Trustee nor any agent of the Trustee
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 Trustee, (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 Trustee, then the
Trustee 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
Trustee, if any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trustee 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;
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(b) the Depositor and the Trustee 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 Trustee 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 Trustee 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 Trustee 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
Trustee 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 Trustee or the Depositor is unable to locate a qualified
successor, (b) the Depositor, at its sole
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option, advises the Trustee 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 an Event of Default, Certificate Owners of such
Book-Entry Certificates having not less than 51% of the Voting Rights evidenced
by any Class of Book-Entry Certificates advise the Trustee 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 Trustee 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 Trustee
with an adequate inventory of certificates to facilitate the issuance and
transfer of Definitive Certificates. Upon surrender to the Trustee of any such
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Trustee shall countersign and deliver such
Definitive Certificates. Neither the Depositor nor the Trustee 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 Trustee, to the extent applicable with respect to such
Definitive Certificates and the Trustee shall recognize the Holders of such
Definitive Certificates as Certificateholders hereunder.
Section 6.09 MAINTENANCE OF OFFICE OR AGENCY.
The Trustee will maintain or cause to be maintained at its expense
an office or offices or agency or agencies at 0000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxx, Xxxxx, 00000, Attention: ITS Transfer Department, Nomura Asset
Acceptance Corporation, 2003-A1 where Certificates may be surrendered for
registration of transfer or exchange. The Trustee will give prompt written
notice to the Certificateholders of any change in such location of any such
office or agency.
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ARTICLE VII
THE DEPOSITOR AND OPTION ONE
Section 7.01 LIABILITIES OF THE DEPOSITOR AND OPTION ONE. Each of the
Depositor and Option One 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 OR OPTION ONE.
(a) Each of the Depositor and Option One will keep in full
force and effect its existence, rights and franchises as a corporation under the
laws of the state of its incorporation, 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) Any Person into which the Depositor or Option One may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Depositor or Option One shall be a party, or any
Person succeeding to the business of the Depositor or Option One shall be the
successor of the Depositor or Option One 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.
Section 7.03 INDEMNIFICATION DEPOSITOR.
(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 and the termination of
this Agreement.
(b) Option One agrees to indemnify the Indemnified Persons and
to hold them harmless from and against any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and any
other costs, fees and expenses that the Indemnified Persons may sustain in any
way related to Option One's gross negligence in the performance of its duties
under this Agreement or failure to service the Option One Mortgage Loans in
material compliance with the terms
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of this Agreement and for breach of any representation or warranty of Option One
contained herein. Option One shall immediately notify the Trustee if a claim is
made by a third party with respect to this Agreement or the Option One 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 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 Option One
shall not limit its obligations hereunder. Option One 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.
Section 7.04 LIMITATIONS ON LIABILITY OF THE DEPOSITOR, OPTION ONE AND
OTHERS. Subject to the obligation of the Depositor and Option One to indemnify
the Indemnified Persons pursuant to Section 7.03:
(a) Neither the Depositor, Option One nor any of the directors,
officers, employees or agents of the Depositor and Option One 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, Option One or any such Person
against any breach of warranties or representations made herein or 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, Option One and any director, officer,
employee or agent of the Depositor and Option One 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, Option One, the Trustee, each Custodian and
any director, officer, employee or agent of the Depositor, Option One, the
Trustee or either Custodian shall be indemnified by the Trust Fund and held
harmless thereby against any loss, liability or either expense (including
reasonable legal fees and disbursements of counsel) incurred on their part that
may be sustained in connection with, arising out of, or related to, any claim or
legal action (including any pending or threatened claim or legal action)
relating to this Agreement, the Certificates or the Servicing Agreement, other
than (i) with respect to such Servicer, any such loss, liability or expense
related to the related Servicer's failure to perform its respective duties in
compliance with this Agreement (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) or the Servicing
Agreement, or, with respect to the Custodian, to the related Custodian's failure
to perform its duties hereunder or under the related Custodial Agreement, (ii)
with respect to such Servicer, any such loss, liability or expense incurred by
reason of the Servicer's willful misfeasance, bad faith or gross negligence in
the performance of duties hereunder or under the Servicing Agreement, as
applicable or (iii) with respect to such Custodian, any such loss, liability or
expense incurred by reason of the
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Custodian's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or under the related Custodial Agreement, as
applicable.
(d) Neither the Depositor nor Option One shall 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, the Trustee 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 shall be expenses, costs and liabilities of the Trust Fund, and the
Trustee shall be entitled to be reimbursed therefor out of the Distribution
Account as provided by Section 4.05. Nothing in this Subsection 7.04(d) shall
affect the Trustee'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 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 the Servicers, the Depositor or the Custodians.
Section 7.05 SERVICER NOT TO RESIGN.
(a) Option One 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 Option One. Any determination permitting the
resignation of Option One shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee which Opinion of Counsel shall be in form and
substance acceptable to the Trustee. No appointment of a successor to Option One
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 clause (i) above and (c) such successor has agreed to assume the
obligations of Option One hereunder to the extent of the Option One Mortgage
Loans to be serviced by such successor. Option One shall provide a copy of the
written confirmation of the Rating Agencies and the agreement executed by such
successor to the Trustee. No such resignation shall become effective until a
Qualified Successor or the Trustee shall have assumed Option One's
responsibilities and obligations hereunder. Option One shall notify the Trustee
and the Rating Agencies of the resignation of Option One.
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Section 7.06 TERMINATION OF OPTION ONE WITHOUT CAUSE.
The Seller may, at its option, terminate the servicing
responsibilities of Option One hereunder with respect to the Option One Mortgage
Loans without cause. No such termination shall become effective unless and until
a successor to Option One shall have been appointed to service and administer
the Option One Mortgage Loans pursuant to the terms and conditions of this
Agreement. No appointment shall be effective unless (i) such successor to Option
One meets the eligibility criteria contained in Section 8.02, (ii) the Trustee
shall have consented to such appointment, (iii) 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, (iv) such successor has agreed to assume the obligations of Option
One hereunder to the extent of the Option One Mortgage Loans and (v) all amounts
reimbursable to Option One pursuant to the terms of this Agreement shall have
been paid to Option One by the successor appointed pursuant to the terms of this
Section 7.06 or by the Seller. The Seller shall provide a copy of the written
confirmation of the Rating Agencies and the agreement executed by such successor
to the Trustee.
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ARTICLE VIII
DEFAULT; TERMINATION OF SERVICER
Section 8.01 SERVICER DEFAULT.
In case one or more of the following events of default by the
Servicer (each, a "Servicer Default") shall occur and be continuing, that is to
say:
(i) any failure by Option One to remit to the Trustee any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of three Business Days; or
(ii) failure on the part of Option One duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of Option One set forth in this Agreement, the breach of which has a
material adverse effect and which continue unremedied for a period of sixty days
(except that such number of days shall be fifteen in the case of a failure to
pay any premium for any insurance policy required to be maintained under this
Agreement and such failure shall be deemed to have a material adverse effect)
after the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee; 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 Option One and such
decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(iv) Option One 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 Option One or of or relating to all or
substantially all of its property; or
(v) Option One 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) Option One attempts to assign its right to servicing
compensation hereunder or Option One 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 as otherwise permitted herein; or
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(vii) Option One 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 Option One's ability to
perform its obligations hereunder; or
(viii) a default by WMBFA under the Servicing Agreement;
then, and in each and every such case, so long as a Servicer Default
shall not have been remedied, the Trustee, by notice in writing to the related
Servicer shall with respect to a payment default by the related Servicer
pursuant to Section 8.01(i) above or Section 6.1(i) of the Servicing Agreement
and, upon the occurrence and continuance of any other Servicer Default, 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 and at law or equity to
damages, including injunctive relief and specific performance, terminate all the
rights and obligations of the related Servicer under this Agreement or the
Servicing Agreement, as applicable and in and to the related Mortgage Loans and
the proceeds thereof without compensating the related Servicer for the same. On
or after the receipt by a Servicer of such written notice, all authority and
power of 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 Trustee. Upon written request from the
Trustee, the related Servicer shall prepare, execute and deliver, any and all
documents and other instruments, place in the Trustee'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 the related
Servicer's sole expense; provided, however, in no event shall Option One be
responsible for any expenses incurred as a result of any termination pursuant to
Section 8.01(viii) above. Option One, pursuant to this Agreement or WMBFA
pursuant to the Servicing Agreement, as applicable, shall cooperate with the
Trustee in effecting the termination of the related 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 related Servicer to
its Custodial Account or Escrow Account or thereafter received with respect to
the related Mortgage Loans or any related REO Property. The Trustee shall not
have knowledge of a Servicer Default unless a Responsible Officer of the Trustee
has actual knowledge or unless written notice of any Servicer Default is
received by the Trustee at its Corporate Trust Office and such notice references
the Certificates, the Trust Fund or this Agreement.
Section 8.02 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
On and after the time a Servicer receives a notice of termination
pursuant to Section 8.01 hereof or pursuant to the Servicing Agreement, the
Trustee shall automatically 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 such Servicer by the terms and
provisions hereof or the Servicing Agreement and applicable law including the
obligation to make Advances pursuant to Article VI hereof or pursuant
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to the Servicing Agreement except as otherwise provided herein; provided,
however, that 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
Trustee in such capacity will make any Advance required to be made by the
predecessor Servicer on the Distribution Date on which the predecessor Servicer
was required to make such Advance. Effective on the date of such notice of
termination, as compensation therefor, the Trustee shall be entitled to all
fees, costs and expenses relating to the Mortgage Loans that the terminated
Servicer would have been entitled to if it had continued to act hereunder or
pursuant to the Servicing Agreement, provided, however, that the Trustee shall
not 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 Servicer pursuant to Section 2.03
or the Servicing Agreement or (iv) obligated to deposit losses on any Permitted
Investment directed by the terminated Servicer. Notwithstanding the foregoing,
the Trustee 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 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 Servicer hereunder or
under the Servicing Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the related 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 any Mortgage Loans under this Agreement or the
Servicing Agreement with respect to which the related Servicer has been
terminated as servicer, 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 or as otherwise set forth herein
or the Servicing Agreement), with like effect as if originally named as a party
to this Agreement and 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 Trustee assumes
the duties and responsibilities of a Servicer in accordance with this Section
8.02, the Trustee shall not resign as Servicer until a Successor Servicer has
been appointed and has accepted such appointment. Pending appointment of a
successor to the Servicer hereunder, the Trustee, unless the Trustee is
prohibited by law from so acting, shall, subject to Section 4.04 hereof, act in
such capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans or otherwise as it and such
successor shall agree; provided that no such compensation shall be in excess of
that permitted the Servicer hereunder or under the Servicing Agreement. The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither the
Trustee 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 or under the
Servicing Agreement, in either case caused by the failure of the
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related 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 Trustee in connection with the
termination of a 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 Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee or the Successor Servicer to service the related
Mortgage Loans properly and effectively, to the extent not paid by the
terminated Servicer, shall be payable to the Trustee from the Distribution
Account pursuant to Section 4.07. Any successor to the terminated Servicer as
successor servicer under this Agreement or a separate servicing 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 related Servicer is required to maintain pursuant to
Section 3.04 hereof or the corresponding section of the Servicing Agreement.
Section 8.03 NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any termination of or appointment of a successor to a
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Servicer
Default, the Trustee shall transmit by mail to all Certificateholders notice of
each such Servicer Default hereunder known to the Trustee, unless such default
shall have been cured or waived.
Section 8.04 WAIVER OF 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 in the performance of its obligations hereunder and its consequences.
Upon any such waiver of a past default, such default shall cease to exist, and
any 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.
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ARTICLE IX
CONCERNING THE TRUSTEE AND THE CUSTODIAN
Section 9.01 DUTIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of a Servicer Default,
and after the curing or waiver of all Servicer Defaults, which may have occurred
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement as duties of the Trustee. If a 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 the same degree of
care and skill in their exercise, as a prudent person would exercise under the
circumstances in the conduct of such Person's own affairs.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments which are specifically
required to be furnished to the Trustee pursuant to any provision of this
Agreement, the Trustee shall examine them to determine whether they are in the
form required by this Agreement; provided, however, that the Trustee shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by any
Servicer.
(c) On each Distribution Date, the Trustee shall make monthly
distributions and the final distribution to the Certificateholders from funds in
the Distribution Account as provided in Sections 5.04 and 10.01 herein based the
applicable Remittance Report.
(d) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of a Servicer Default and after the
curing or waiver of all such Servicer Default which may have occurred
with respect to the Trustee, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of their
respective duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely 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 and conforming to
the requirements of this Agreement;
(ii) The Trustee shall not 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 unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
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(iii) The Trustee shall not 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 exercising any trust or other power conferred upon the
Trustee under this Agreement;
(iv) The Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default or 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 or 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 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 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 forseeable or contemplated; and
(vii) None of the Seller, 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.
The Trustee shall not 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 to perform, or be responsible for the manner of performance of, any
of the obligations of the Servicer hereunder or under the Servicing Agreement.
(e) All funds received by the Trustee and required to be
deposited in the Distribution Account pursuant to this Agreement will be
promptly so deposited by the Trustee.
Section 9.02 CERTAIN MATTERS AFFECTING THE TRUSTEE.
(a) Except as otherwise provided in Section 9.01:
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(i) The Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in reliance on any
resolution or certificate of the Seller, the Depositor or any Servicer,
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 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) The Trustee shall not 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 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 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 under the circumstances in the conduct of
his own affairs;
(iv) The Trustee shall not 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) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates evidencing not less than 25% of the
aggregate Voting Rights of the Certificates and provided that the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee reasonably assured to the
Trustee by the security afforded to it by the terms of this Agreement.
The Trustee 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
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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 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; and
(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
related 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 or
(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.
Section 9.03 TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS.
The recitals contained herein and in the Certificates (other than
the signature and authentication of the Trustee on the Certificates) shall be
taken as the statements of the Depositor, and the Trustee shall not have any
responsibility for their correctness. The Trustee does not make any
representation as to the validity or sufficiency of the Certificates (other than
the signature and authentication of the Trustee on the Certificates) or of any
Mortgage Loan except as expressly provided in Sections 2.02 and 2.06 hereof;
provided, however, that the foregoing shall not relieve the Custodian of the
obligation to review the Mortgage Files pursuant to Sections 2.02 and 2.05 of
this Agreement. The Trustee's signature and authentication (or authentication of
its agent) on the Certificates shall be solely in its capacity as Trustee and
shall not constitute the Certificates an obligation of the Trustee in any other
capacity. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor with respect to
the Mortgage Loans. The Trustee (other than in its capacity as Custodian and on
such capacity, subject to the provisions of Section 2.06 hereof) shall not be
responsible for the legality or validity of this Agreement or any document or
instrument relating to
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this Agreement, the validity of the execution of this Agreement or of any
supplement hereto or instrument of further assurance, or the validity, priority,
perfection or sufficiency of the security for the Certificates issued hereunder
or intended to be issued hereunder. The Trustee shall not at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust Fund or its ability to
generate the payments to be distributed to Certificateholders, under this
Agreement. The Trustee shall not have any responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this Agreement.
Section 9.04 TRUSTEE MAY OWN CERTIFICATES.
The Trustee in its individual capacity or in any capacity other
than as Trustee hereunder may become the owner or pledgee of any Certificates
with the same rights it would have if it were not the Trustee and may otherwise
deal with the parties hereto.
Section 9.05 TRUSTEE'S FEES AND EXPENSES.
The Trustee shall withdraw from the Distribution Account on each
Distribution Date of the Trustee Fee. In addition, all income and gain realized
from any investment of funds in the Distribution Account shall be for the
benefit of the Trustee as additional compensation.
In addition, the Trustee will be entitled to recover from the
Distribution Account pursuant to Section 4.07 all reasonable out-of-pocket
expenses, disbursements and advances and the expenses of the Trustee in
connection with the performance of its duties and obligations hereunder or under
any related documents, any Servicer Default, any breach of this Agreement or any
claim or legal action (including any pending or threatened claim or legal
action) incurred or made by the Trustee in the administration of the trusts
hereunder (including the reasonable compensation, expenses and disbursements of
its counsel) except any such expense, disbursement or advance as may arise from
its negligence or intentional misconduct. If funds in the Distribution Account
are insufficient therefor, the Trustee shall recover such expenses from the
Seller. Such compensation and reimbursement obligation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust. The rights of the Trustee under this Section 9.05 shall survive the
termination of this Agreement and the resignation or removal of the Trustee.
Section 9.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Trustee and any successor Trustee shall during the entire
duration of this Agreement be a state bank or trust company or a national
banking association organized and doing business under the laws of a state or
the United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus and undivided profits of at
least $40,000,000 or, in the case of a successor Trustee, $50,000,000, subject
to supervision or
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examination by federal or state authority and, in the case of the Trustee, rated
"BBB" or higher by Fitch with respect to their long-term rating and rated "BBB"
or higher by Standard & Poor's and "Baa2" or higher by Moody's with respect to
any outstanding long-term unsecured unsubordinated debt, and, in the case of a
successor Trustee other than pursuant to Section 9.10, rated in one of the two
highest long-term debt categories of, or otherwise acceptable to, each of the
Rating Agencies. If the Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 9.06 the combined
capital and surplus of such corporation shall be deemed to be its total equity
capital (combined capital and surplus) as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
9.08.
Section 9.07 INSURANCE.
The Custodian hereunder, at its own expense, shall at all times
maintain and keep in full force and effect such insurance in amounts, with
standard coverage and subject to deductibles, as are customary for insurance
typically maintained by banks which act as custodians but, in any event not less
than that required by Xxxxxx Mae. Evidence of such insurance shall be furnished
to any Certificateholder upon reasonable written request.
Section 9.08 RESIGNATION AND REMOVAL OF TRUSTEE.
The Trustee may at any time resign and be discharged from the
Trust hereby created by giving written notice thereof to the Depositor and the
Seller, with a copy to the Rating Agencies. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered to
the resigning trustee and the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation or removal, the resigning or removed
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.06 hereof and shall fail to resign
after written request thereto by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(iii)(A) a tax is imposed with respect to the Trust Fund by any state in which
the Trustee or the Trust Fund is located, (B) the imposition of such tax would
be avoided by the appointment of a different trustee and (C) the Trustee fails
to indemnify the Trust Fund against such tax, then the Depositor may remove the
Trustee and appoint a successor trustee by written instrument, in multiple
copies, a copy of which instrument shall be delivered to the Trustee and the
successor trustee.
The Holders evidencing at least 51% of the Voting Rights of each
Class of Certificates may at any time remove the Trustee and appoint a successor
trustee by written instrument or
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instruments, in multiple copies, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered by the successor trustee to the Trustee so removed and the
successor trustee so appointed. Notice of any removal of the Trustee shall be
given to each Rating Agency by the Trustee or successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.08 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 10.09 hereof.
Section 9.09 SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 9.08 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein.
No successor trustee shall accept appointment as provided in this
Section 9.09 unless at the time of such acceptance such successor trustee 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 as provided
in this Section 9.09, the successor trustee shall mail notice of the succession
of such trustee hereunder to all Holders of Certificates. If the successor
trustee 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 9.10 MERGER OR CONSOLIDATION OF TRUSTEE.
Any corporation, state bank or national banking association into
which the Trustee 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
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 shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of Section 9.06 hereof
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 9.11 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Fund or property securing any Mortgage Note may at
the time be located, the Trustee shall have the power and shall
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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 the Trust Fund, and
to vest in such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 9.11, 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 and no notice to Certificateholders of the appointment of any co-trustee or
separate trustee shall be required under Section 9.09.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee as
Successor Servicer under this Agreement or the Servicing Agreement, as
applicable, to advance funds on behalf of the such Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to be
performed (whether a Trustee hereunder or as a Successor 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 the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-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 trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Depositor. The Trust Fund shall pay associated fees and expenses.
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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.
Section 9.12 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
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of the Trust Fund. The Trustee, as
agent on behalf of the Trust Fund, shall do or refrain from doing, as
applicable, the following: (a) the Trustee 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 Trustee 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 Trustee
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
Trustee 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 Trustee 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
Trustee 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
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Provisions; (g) the Trustee 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 Trustee 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 Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee 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 Trustee pursuant to this Section 9.12 requiring a signature thereon by
the Trustee; (j) the Trustee 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
Trustee 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
Trustee 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 Trustee 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 Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within 10 days after the Closing Date all information or data that the Trustee
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 Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, request in order to
enable the Trustee to perform its duties as set forth herein. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause to
be provided, accurate information or data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions"
of any of REMIC I or REMIC II 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 of REMIC I or REMIC II
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
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any of REMIC I or REMIC II, and is not paid as otherwise provided for herein,
such tax shall be paid by (i) the Trustee, if any such other tax arises out of
or results from a breach by the Trustee of any of its obligations under this
Section, (ii) any party hereto (other than the Trustee) 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 will be paid first with amounts
otherwise to be distributed to the Class R Certificateholders, and second with
amounts otherwise to be distributed to all other Certificateholders in the
following order of priority: first, to the Class B5 Certificates, second, to the
Class B4 Certificates, third, to the Class B3 Certificates, fourth to the Class
B2 Certificates, fifth to the Class B1 Certificates, sixth to the Class M
Certificates and seventh, to the 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 Trustee is hereby authorized to retain on any Distribution
Date, from the Holders of the Class R Certificates (and, if necessary, second,
from the Holders of the other Certificates in the priority specified in the
preceding sentence), funds otherwise distributable to such Holders in an amount
sufficient to pay such tax. The Trustee shall include in its Remittance Report
instructions as to distributions to such parties taking into account the
priorities described in the second preceding sentence. The Trustee 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.
Section 9.13 CUSTODIAN'S FEES AND EXPENSES.
The Seller covenants and agrees to pay the Custodian from time to
time, and the Custodian shall be entitled to reasonable compensation for all
services rendered by it in the exercise and performance of any of the powers and
duties of the Custodian hereunder, and the Seller will pay or reimburse the
Custodian upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Custodian in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith or to the extent that such cost or expense is
indemnified by the Depositor pursuant to this Agreement.
Section 9.14 INDEMNIFICATION OF CUSTODIAN.
The Custodian and its directors, officers, agents and employees
shall be indemnified and held harmless by the Trust Fund against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever, including
reasonable attorney's fees, that may be imposed on, incurred by or asserted
against it or them in any way relating to or arising out of this Agreement or
any action taken or not taken by it or them hereunder except to the extent
caused by the Custodian's negligence or willful misconduct. If funds in
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the Trust Fund are insufficient therefor, the Custodian shall recover such
expenses from the Seller. The indemnification provided for under this Section
9.14 shall survive the termination of this Agreement and the resignation or
removal of the Custodian.
Section 9.15 RELIANCE OF CUSTODIAN.
(a) The Custodian may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
request, instructions, direction, certificate, opinion or other document
furnished to the Custodian, reasonably believed by the Custodian to be genuine
and to have been signed or presented by the proper party or parties and
conforming to the requirements of this Agreement;
(b) The Custodian shall have no duties or responsibilities
except those that are specifically set forth in this Agreement. The Custodian
shall have no responsibility nor duty with respect to any Mortgage File while
such Mortgage File is not in its possession. If the Custodian requests
instructions from the Trustee with respect to any act, action or failure to act
in connection with this Agreement, the Custodian shall be entitled to refrain
from acting unless and until the Custodian shall have received written
instructions from the Trustee with respect to a Mortgage File without incurring
any liability therefor to the Trustee or any other Person;
(c) The Custodian shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Custodian unless it shall be proved that the Custodian was negligent in
ascertaining the pertinent facts;
(d) Anything in this Agreement to the contrary notwithstanding,
in no event shall the Custodian 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 Custodian 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;
(e) The Custodian shall not be required to expend or risk its
own funds or otherwise incur financial liability (other than expenses or
liabilities otherwise required to be incurred by the express terms of this
Agreement) in the performance of any of its duties hereunder if it shall have
reasonable grounds for believing that the repayment of such funds or indemnity
satisfactory to it is not reasonably assured to it;
(f) The Custodian 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;
(g) The Custodian makes no representations and has no
responsibilities as to (i) the validity, legality, enforceability,
recordability, sufficiency, due authorization or genuineness of any of the
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documents contained in the Mortgage Files or any of the Mortgage Loans or (ii)
the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan;
(h) Neither the Custodian nor any of this directors, officers,
agents or employees shall be liable for 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. The obligations of the
Custodian or any of its directors, officers, agents or employees shall be
determined solely by the express provisions of this Agreement. No
representation, warranty, covenant, agreement, obligation or duty of the
Custodian or any of its directors, officers, agents or employees shall be
implied with respect to this Agreement or the Custodian's services hereunder;
(i) The Custodian, its directors, officers and employees shall
be under no duty or obligation to inspect, review or examine the Mortgage Files
to determine that the contents thereof are genuine, enforceable or appropriate
for the represented purpose or that they have been actually recorded or that
they are other than what they purport to be on their face;
(j) Any corporation into which the Custodian may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Custodian shall be a
party, or any corporation succeeding to the business of the Custodian shall be
the successor of the Custodian hereunder without the execution or filing of any
paper with any party hereto or any further act on the part of any of the parties
hereto except where an instrument of transfer or assignment is required by law
to effect such succession, anything to the contrary herein notwithstanding.
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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 Seller and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase by the Depositor
of all of the Mortgage Loans (and REO Properties) remaining in the Trust Fund at
a price (the "Mortgage Loan Purchase Price") equal to the sum of (i) 100% of the
Stated Principal Balance of each Mortgage Loan (other than in respect of REO
Property), (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 REO Property in the Trust Fund (up to the Stated Principal Balance
of the related Mortgage Loan), such appraisal to be conducted by an appraiser
mutually agreed upon by the Depositor and the Trustee and (iv) unreimbursed
out-of pocket costs of the Servicers or the Trustee, including unreimbursed
servicing advances and the principal portion of any unreimbursed Advances, made
on the Mortgage Loans prior to the exercise of such repurchase right and (v) any
unreimbursed costs and expenses of the Trustee payable pursuant to Section 9.05
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to this Agreement, as
applicable. In no event shall the trusts created hereby continue beyond the
earlier of (i) the expiration of 21 years from the death of the last survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to the Court of St. Xxxxx, living on the date hereof and (ii) the Latest
Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties
pursuant to clause (a) in the preceding paragraph shall be conditioned upon the
Stated Principal Balance of all of the Mortgage Loans in the Trust Fund, at the
time of any such repurchase, aggregating five percent or less of the aggregate
Cut-off Date Principal Balance of all of the Mortgage Loans.
Section 10.02 FINAL DISTRIBUTION ON THE CERTIFICATES.
If on any Determination Date, (i) the Trustee determines based on
the reports delivered by the Servicers under this Agreement and the Servicing
Agreement that there are no Outstanding Mortgage Loans and no other funds or
assets in the Trust Fund other than the funds in the Distribution Account, the
Trustee shall to send a final distribution notice promptly to each
Certificateholder or (ii) the Trustee determines that a Class of Certificates
shall be retired after a final distribution on such Class, the Trustee shall
notify 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
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office of the Trustee set forth herein. If the Depositor elects to terminate the
Trust Fund pursuant to Section 10.01, at least 20 days prior to the date notice
is to be mailed to the Certificateholders, the Depositor shall notify the
Trustee of the date the Depositor intends to terminate the Trust Fund. The
Depositor shall remit the Mortgage Loan Purchase Price to the Trustee on the
Business Day prior to the Distribution Date for such Optional Termination by the
Depositor.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 10th
day and no later than the 15th day of the month immediately preceding the month
of such final distribution. Any such notice shall specify (a) the Distribution
Date upon which final distribution on the Certificates will be made upon
presentation and surrender of 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 the
Certificates at the office therein specified. The Trustee will give such notice
to each Rating Agency at the time such notice is given to Certificateholders.
In the event such notice is given, the Depositor 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. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Depositor, as applicable the Mortgage Files for the
Mortgage Loans and any documents necessary to transfer any REO Property.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to Certificateholders of each Class the amounts
allocable to such Certificates held in the Distribution Account in the order and
priority set forth in Section 6.04 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 months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining 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 years after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund that remain subject hereto and the Trustee shall
release such funds upon written direction.
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Section 10.03 ADDITIONAL TERMINATION REQUIREMENTS.
(a) Upon exercise by the Depositor of its purchase option as
provided in Section 10.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied with
an Opinion of Counsel, at the expense of the Depositor, to the effect that the
failure of the Trust Fund to comply with the requirements of this Section 11.03
will not (i) result in the imposition of taxes on "prohibited transactions" of a
REMIC, or (ii) cause a REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(1) The Depositor shall establish a 90-day liquidation period
and notify the Trustee thereof, and the Trustee shall in turn specify the first
day of such period in a statement attached to the tax return for each of REMIC I
and REMIC II pursuant to Treasury Regulation Section 1.860F-1. The Depositor
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 Depositor;
(2) During such 90-day liquidation period, and at or prior to
the time of making the final payment on the Certificates, the Depositor shall
sell all of the assets of REMIC I and REMIC II for cash; and
(3) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be distributed
or credited, to the Holders of the Residual Certificates all cash on hand (other
than cash retained to meet claims), and REMIC I shall terminate at that time.
(b) By their acceptance of the Certificates, the Holders
thereof hereby authorize the Depositor to specify the 90-day liquidation period
for REMIC I and REMIC II, which authorization shall be binding upon all
successor Certificateholders.
(c) The Trustee as agent for each REMIC hereby agrees to adopt
and sign such a plan of complete liquidation upon the written request of the
Depositor, and the receipt of the Opinion of Counsel referred to in Section
10.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Depositor.
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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 Trustee or the Custodial Account
maintained by the Servicer 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; 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.
Notwithstanding the foregoing, without the consent of the
Certificateholders, 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 of REMIC I and REMIC II as a REMIC under the Code or to avoid or
minimize the risk of the imposition of any tax on any of REMIC I or REMIC II
pursuant to the Code that would be a claim against any of REMIC I or REMIC II 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; 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 of REMIC I or REMIC II 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
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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 REMIC I or
REMIC II or the Certificateholders or cause REMIC I or REMIC II 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.
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 Seller 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
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ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
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 Seller
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 Seller 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 Seller 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 Seller 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.
(a) The Trustee 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:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been
cured;
(iii) The resignation or termination of the Servicer or the
Trustee and the appointment of any successor; and
(iv) The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating
Agency copies of the following:
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(i) Each report to Certificateholders described in Section
5.05;
(ii) Each annual statement as to compliance described in Section
3.16; and
(iii) Each annual independent public accountants' servicing
report described in Section 4.17.
(b) 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 Asset Acceptance Corp., 2 World Xxxxxxxxx Xxxxxx,
Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000 Attention: Nomura Asset Acceptance
Corporation, Alternative Loan Trust, Series 2003-A1; (ii) in the case of the
Seller, Nomura Credit & Capital, Inc., 2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Nomura Asset Acceptance Corporation,
Alternative Loan Trust, Series 2003-A1 or such other address as may be hereafter
furnished to the other parties hereto by the Master Servicer in writing; (iii)
in the case of the Servicer, Option One Mortgage Corporation, 3 Ada, Xxxxxx,
Xxxxxxxxxx 00000, Attention: Nomura Asset Acceptance Corporation, Alternative
Loan Trust, Series 2003-A1; (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 Rating Agencies, (x) Fitch Ratings,
Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (y) Standard & Poor's, 00
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Group. Any notice delivered to the Seller 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
Seller or the Depositor.
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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 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 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 EXECUTION BY TRUSTEE.
The Trustee is hereby authorized to execute the Custodial
Assignment, Assignment Agreement and the U.S. Bank Custodial Agreement on behalf
of the Certificateholders.
* * *
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IN WITNESS WHEREOF, the Depositor, the Seller, Option One 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 ASSET ACCEPTANCE
CORPORATION,
as Depositor
By: /s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
Title: Assistant Secretary
NOMURA CREDIT & CAPITAL, INC.,
as a Seller
By: /s/ N. Xxxxx Xx Xxxxx
------------------------------------
Name: N. Xxxxx Xx Xxxxx
Title: Authorized Agent
OPTION ONE MORTGAGE CORPORATION,
as Servicer
By:/s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: CSO
JPMORGAN CHASE BANK
as Trustee
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
JPMORGAN CHASE BANK
as Custodian
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED (WITH
RESPECT TO SECTIONS 4.08 AND 4.09):
THE MURRAYHILL COMPANY
By: /s/ Xxxxxxxx Xxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxx Xxxxx
Title: President and CEO
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of April, 2003, 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 Asset
Acceptance Corporation, one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
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 April, 2003, 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 NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of April, 2003, 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 Option One
Mortgage Corporation, one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
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 April, 2003, 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 JPMorgan Chase Bank
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 COLORADO )
) ss.:
COUNTY OF )
On this ___ day of April, 2003, 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 The Murrayhill
Company, one of the corporations that executed the within instrument, and also
known to me to be the person who executed it on behalf of 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]
X-0
XXXXXXX X-0
CLASS A[__] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (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 TRUSTEE NAMED HEREIN.
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.
A-1-1
Certificate No.1 Pass-Through Rate: ___%
Class A[__] Senior
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
April 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
May 25, 2003 Certificate as of the Cut-off Date:
$___________
Trustee: JPMorgan Chase Bank CUSIP: ___________
Final Scheduled Distribution Date:
--------------------
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-A1
evidencing a fractional undivided interest in the distributions
allocable to the Class A[__] Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one-to four-family
fixed-rate mortgage loans sold by NOMURA ASSET ACCEPTANCE CORPORATION.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") 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 NAAC or the Trustee or
any of their affiliates or any other person. None of NAAC, the Trustee 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 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 mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among NAAC, as depositor (the "Depositor"), the Seller, as seller,
Option One Mortgage Corporation, as servicer and JPMorgan Chase Bank, as trustee
(the
A-1-2
"Trustee"), 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 Principal Balance hereof at a per annum rate equal to the
Pass-Through Rate set forth above. The Trustee 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 Last Scheduled Distribution Date is
______________ and 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 Trustee
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 Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose 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 Trustee.
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 each Class of Certificates affected thereby evidencing over 50% of
the Voting
A-1-3
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 Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
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 Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee 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 Trustee or any such agent shall be affected
by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the Agreement continue beyond the expiration of 21 years
after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
A-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: April 29, 2003 JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A[__] Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan
Chase Bank, not in its individual
capacity but solely as Trustee
By:
------------------------------
Authorized Signatory
A-1-5
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 ______________________, the
assignee named above, or ________________________, as its agent.
X-0-0
XXXXXXX X-0
CLASS APO 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 TRUSTEE NAMED HEREIN.
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.
A-2-1
Certificate No.1
Class APO Senior
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
April 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
May 25, 2003 Certificate as of the Cut-off Date:
$___________
Trustee: JPMorgan Chase Bank CUSIP: ___________
Final Scheduled Distribution Date:
-----------
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-A1
evidencing a fractional undivided interest in the distributions
allocable to the Class APO Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") 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 NAAC, the Trustee or any
of their affiliates or any other person. None of NAAC, the Trustee 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 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 mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among NAAC, as depositor (the "Depositor"), the Seller, as
A-2-2
seller, Option One Mortgage Corporation, as servicer and JPMorgan Chase Bank, as
trustee (the "Trustee"), 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.
The Trustee 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
preceding the month of such Distribution Date, an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount of
principal required to be distributed to the Holders of Certificates of the same
Class as this Certificate. The Last Scheduled Distribution Date is ___________
and 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 Trustee
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 Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose 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 Trustee.
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 evidencing over 50% of the
Voting Rights
A-3-4
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 Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
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 Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee 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 Trustee or any such agent shall be
affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the Agreement continue beyond the expiration of 21 years
after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
A-2-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: April 29, 2003 JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
-------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class APO Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan
Chase Bank, not in its individual
capacity but solely as Trustee
By:
-------------------------------
Authorized Signatory
A-2-5
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 ______________________, the
assignee named above, or ________________________, as its agent.
X-0-0
XXXXXXX X-0
CLASS AIO 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").
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.
A-3-1
Certificate No.1 Variable Pass-Through Rate
Class AIO Senior
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
April 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
May 25, 2003 Certificate as of the Cut-off Date:
$___________
Trustee: JPMorgan Chase Bank CUSIP: ___________
Final Scheduled Distribution Date:
--------------
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-A1
evidencing a fractional undivided interest in the distributions
allocable to the Class AIO Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") 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 NAAC
or the Trustee or any of their affiliates or any other person. None of NAAC, the
Trustee 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 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 mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among NAAC, as depositor (the "Depositor"), the Seller, as seller,
Option One Mortgage Corporation, as servicer and JPMorgan Chase Bank, as trustee
(the
A-3-2
"Trustee"), 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 Notional Balance hereof at a per annum rate as set forth in the
Agreement. The Trustee 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
preceding the month of such Distribution Date, an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount of interest
required to be distributed to the Holders of Certificates of the same Class as
this Certificate. The Last Scheduled Distribution Date is the Distribution Date
in _____________.
Distributions on this Certificate will be made by the Trustee
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 Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice. The
Class AIO Certificates have no Certificate Principal Balance. The Initial
Notional Balance of this Certificate is set forth above.
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 Trustee.
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
A-3-3
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 Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
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 Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee 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 Trustee or any such agent shall be affected
by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the Agreement continue beyond the expiration of 21 years
after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
A-3-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: April 29, 2003 JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
-------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class AIO Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan
Chase Bank, not in its individual
capacity but solely as Trustee
By:
-------------------------------
Authorized Signatory
A-3-5
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 ______________________, the
assignee named above, or ________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS M CERTIFICATE
THIS CLASS M CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO
THE SENIOR CERTIFICATES 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 CURRENT PRINCIPAL AMOUNT 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 CURRENT
PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION
SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
EACH BENEFICIAL OWNER OF A CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF
THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I) IT IS NOT A PLAN OR
INVESTING WITH "PLAN ASSETS", (II) IT HAS ACQUIRED AND IS HOLDING SUCH
CERTIFICATE IN RELIANCE ON PROHIBITED TRANSACTION EXEMPTION 2002-41 AS AMENDED
("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE
AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THE CERTIFICATE MUST BE RATED, AT
THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY S&P, FITCH OR
XXXXX'X INVESTORS SERVICE, INC., 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.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES AND CLASS PO
CERTIFICATE DEFERRED PAYMENT WRITEDOWN AMOUNTS, ALLOCABLE HERETO AS DESCRIBED IN
THE AGREEMENT.
A-4-1
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 TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL
BE 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 WILL
BE 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.
A-4-2
Certificate No.__ Variable Pass-Through Rate
Class M Subordinate
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
April 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
May 25, 2003 Certificate as of the Cut-off Date:
$___________
Trustee: JPMorgan Chase Bank CUSIP: ___________
Final Scheduled Distribution Date:
--------------
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-A1
evidencing a fractional undivided interest in the distributions
allocable to the Class M Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") 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 NAAC
or the Trustee or any of their affiliates or any other person. None of NAAC, the
Trustee 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 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 mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among NAAC, as depositor (the "Depositor"), the Seller, as seller,
Option One Mortgage Corporation, as servicer and JPMorgan Chase Bank, as trustee
(the
A-4-3
"Trustee"), 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 Principal Balance hereof at a per annum rate equal to the
Pass-Through Rate set forth above. The Trustee 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 amount (of interest and principal, if any) required to
be distributed to the Holders of Certificates of the same Class as this
Certificate. The Last Scheduled Distribution Date is _____________ and 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 Trustee
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 Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice. The
Initial Current Principal Amount of this Certificate is set forth above. The
Current Principal Amount 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"),
issued in twenty Classes. 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 Trustee.
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
A-4-4
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
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 Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations representing a like aggregate Percentage Interest
will be issued to the designated transferee.
Each beneficial owner of a Certificate or any interest therein
shall be deemed to have represented, by virtue of its acquisition or holding of
that certificate or interest therein, that either (i) it is not a Plan or
investing with "Plan Assets", (ii) it has acquired and is holding such
certificate in reliance on the Exemption, and that it understands that there are
certain conditions to the availability of the Exemption, including that the
certificate must be rated, at the time of purchase, not lower than "BBB-" (or
its equivalent) by S&P, Fitch or Xxxxx'x Investors Service, Inc., 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.
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 Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee 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 Trustee or any such agent shall be
affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the
A-4-5
optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than the percentage of the aggregate Stated Principal
Balance specified in the Agreement of the Mortgage Loans at the Cut-off Date.
The exercise of such right will effect the early retirement of the Certificates.
In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified
in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee 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 Trustee has caused this Certificate to
be duly executed.
Dated: April 29, 2003 JPMORGAN CHASE BANK
Not in its individual capacity but
solely as Trustee
By:
-------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan
Chase Bank, not in its individual
capacity but solely as Trustee
By:
-------------------------------
Authorized Signatory
A-4-6
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 Fractional
Undivided Interest evidenced by the within Mortgage Pass-Through 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 _________________________, the
assignee named above, or ________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS B[1][2] CERTIFICATE
THIS CLASS B[1][2] CERTIFICATE IS SUBORDINATE IN RIGHT OF
PAYMENT TO THE SENIOR CERTIFICATES [AND] THE CLASS M CERTIFICATES [THE CLASS B_
CERTIFICATES, [AND] THE CLASS B_ CERTIFICATES] 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 CURRENT PRINCIPAL AMOUNT 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 CURRENT
PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION
SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES AND CLASS PO
CERTIFICATE DEFERRED PAYMENT WRITEDOWN AMOUNTS, ALLOCABLE HERETO AS DESCRIBED IN
THE AGREEMENT. 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 TRUSTEE NAMED HEREIN.
EACH BENEFICIAL OWNER OF A CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF
THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I) IT IS NOT A PLAN OR
INVESTING WITH "PLAN ASSETS", (II) IT HAS ACQUIRED AND IS HOLDING SUCH
CERTIFICATE IN RELIANCE ON PROHIBITED TRANSACTION EXEMPTION 2002-41 AS AMENDED
("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE
AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THE CERTIFICATE MUST BE RATED, AT
THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY S&P, FITCH OR
MOODY'S
A-5-1
INVESTORS SERVICE, INC., 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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL
BE 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 WILL
BE 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.__ Variable Pass-Through Rate
Class B[__] Subordinate
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
April 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
May 25, 2003 Certificate as of the Cut-off Date:
$___________
Trustee: JPMorgan Chase Bank CUSIP: ___________
Final Scheduled Distribution Date:
--------------
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-A1
evidencing a fractional undivided interest in the distributions
allocable to the Class B[1][2][3] Certificates with respect to a Trust
Fund consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION
A-5-2
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") 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 NAAC
or the Trustee or any of their affiliates or any other person. None of NAAC, the
Trustee 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 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 mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among NAAC, as depositor (the "Depositor"), the Seller, as seller,
Option One Mortgage Corporation, as servicer and JPMorgan Chase Bank, as trustee
(the "Trustee"), 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 Principal Balance hereof at a per annum rate equal to the
Pass-Through Rate set forth above. The Trustee 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 amount (of interest and principal, if any) required to
be distributed to the Holders of Certificates of the same Class as this
Certificate. The Last Scheduled Distribution Date is _______________ and 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 Trustee
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 Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice. The
Initial Current Principal Amount of this Certificate is set forth above. The
Current Principal Amount hereof will be reduced to the extent of distributions
allocable to principal hereon and any Realized Losses allocable hereto.
A-5-3
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates"),
issued in twenty Classes. 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 Trustee.
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 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 Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations representing a like aggregate Percentage Interest
will be issued to the designated transferee.
Each beneficial owner of a Certificate or any interest therein
shall be deemed to have represented, by virtue of its acquisition or holding of
that certificate or interest therein, that either (i) it is not a Plan or
investing with "Plan Assets", (ii) it has acquired and is holding such
certificate in reliance on the Exemption, and that it understands that there are
certain conditions to the availability of the Exemption, including that the
certificate must be rated, at the time of purchase, not lower than "BBB-" (or
its equivalent) by S&P, Fitch or Xxxxx'x Investors Service, Inc., 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.
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
A-5-4
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 Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee 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 Trustee or any such agent shall be
affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the Agreement continue beyond the expiration of 21 years
after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee 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 Trustee has caused this Certificate to
be duly executed.
Dated: April 29, 2003 JPMORGAN CHASE BANK
Not in its individual capacity but
solely as Trustee
By:
-------------------------------
Authorized Signatory
A-5-5
CERTIFICATE OF AUTHENTICATION
This is one of the Class B[1][2][3] Certificates referred to
in the within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan Chase
Bank, not in its individual capacity but
solely as Trustee
By:
-------------------------------------
Authorized Signatory
A-5-6
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 Fractional
Undivided Interest evidenced by the within Mortgage Pass-Through 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 _________________________, the
assignee named above, or ________________________, as its agent.
X-0-0
XXXXXXX X-0
CLASS B[4][5] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
SENIOR CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS B1 CERTIFICATES, THE
CLASS B2 CERTIFICATES [AND] THE CLASS B3 CERTIFICATES [AND THE CLASS B4
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 AND CLASS PO
CERTIFICATE DEFERRED PAYMENT WRITEDOWN AMOUNTS ALLOCABLE HERETO AS DESCRIBED IN
THE AGREEMENT. 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 TRUSTEE NAMED HEREIN.
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.
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
A-6-1
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 TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM
PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER
EVIDENCE ACCEPTABLE TO THE TRUSTEE 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 EITHER A CERTIFICATION PURSUANT TO SECTION
6.02(B) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE
THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO
THOSE UNDERTAKEN IN THE AGREEMENT.
A-6-2
Certificate No.__ Variable Pass-Through Rate
Class B[__] Subordinate
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
April 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
May 25, 2003 Certificate as of the Cut-off Date:
$___________
Trustee: JPMorgan Chase Bank CUSIP: ___________
Final Scheduled Distribution Date:
--------------
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-A1
evidencing a fractional undivided interest in the distributions
allocable to the Class B[4][5] Certificates with respect to a Trust
Fund consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") 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 NAAC
or the Trustee or any of their affiliates or any other person. None of NAAC, the
Trustee 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 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 mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date
A-6-3
specified above (the "Agreement"), among NAAC, as depositor (the "Depositor"),
the Seller, as seller, Option One Mortgage Corporation, as servicer and JPMorgan
Chase Bank, as trustee (the "Trustee"), 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 Principal Balance hereof at a per annum rate equal to the
Pass-Through Rate set forth above. The Trustee 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 amount (of interest and principal, if any) required to
be distributed to the Holders of Certificates of the same Class as this
Certificate. The Final Scheduled Distribution Date is ________________ and 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 Trustee
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 Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice. The
Initial Current Principal Amount of this Certificate is set forth above. The
Current Principal Amount hereof will be reduced to the extent of distributions
allocable to principal hereon and any Realized Losses allocable hereto.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit 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 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
A-6-4
Depositor nor the Trustee is obligated to register or qualify the Class of
Certificates specified on the face hereof under the 1933 Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of such Certificates without registration or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the Seller 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 Class B[_] Certificate will be made unless
the Trustee has received either (i) an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee with respect to the
permissibility of such transfer under the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code
(the "Code") and stating, among other things, that the transferee's acquisition
of a Class B[3][4][5] Certificate will not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or
(ii) a representation letter, in the form as described by the Agreement, stating
that the transferee is not an employee benefit or other plan subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code (a
"Plan"), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any Plan; or [in the case of
the Class X-0, X-0 and B-5 Certificates] that the proposed transfer and holding
of the Certificate and the servicing, management, and operation of the trust and
its assets (A) will not result in any prohibited transaction which is not
covered under an individual or class prohibited transaction exemption,
including, but not limited to, prohibited transaction exemption ("PTE") 84-14,
XXX 00-00, XXX 00-0, XXX 00-00, XXX 00-00 or Section 401(c) of ERISA and the
regulations promulgated thereunder and (B) will not give rise to any additional
fiduciary duties on the part of the Depositor, the Trustee or any Servicer.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates"),
issued in twenty Classes. 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 Trustee.
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 evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive
A-6-5
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 Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
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 Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee 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 Trustee or any such agent shall be
affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the Agreement continue beyond the expiration of 21 years
after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
A-6-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: April 29, 2003 JPMORGAN CHASE BANK
Not in its individual capacity but
solely as Trustee
By:
-------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B[4][5] Certificates referred to in
the within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan
Chase Bank, not in its individual
capacity but solely as Trustee
By:
-------------------------------
Authorized Signatory
A-6-7
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 Fractional
Undivided Interest evidenced by the within Mortgage Pass-Through 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 ______________________, the
assignee named above, or ________________________, as its agent.
X-0-0
XXXXXXX X-0
CLASS R 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 MAY BE MADE TO ANY PERSON,
UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION
6.02(B) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE
THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO
THOSE UNDERTAKEN IN 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
TRUSTEE 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
A-7-1
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.
A-7-2
Certificate No.__ Pass-Through Rate: ____%
Class R Percentage Interest: 100%
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
April 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
May 25, 2003 Certificate as of the Cut-off Date:
$___________
Trustee: JPMorgan Chase Bank CUSIP: ___________
Final Scheduled Distribution Date:
--------------
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-A1
evidencing a fractional undivided interest in the distributions
allocable to the Class R Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") 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 NAAC
or the Trustee or any of their affiliates or any other person. None of NAAC, the
Trustee 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 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 mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among NAAC, as depositor (the "Depositor"), the Seller, as seller,
Option One Mortgage Corporation, as servicer and JPMorgan Chase Bank, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the
A-7-3
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 Trustee 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 Trustee 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 Final Stated Final Distribution Date
______________.
Distributions on this Certificate will be made by the Trustee
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 Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice.
No transfer of this Class R Certificate will be made unless
the Trustee has received either (i) an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee with respect to the
permissibility of such transfer under the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code
(the "Code") and stating, among other things, that the transferee's acquisition
of a Class R Certificate will not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
and will not subject the Trustee or the Depositor to any obligation in addition
to those expressly undertaken in the Pooling Agreement or (ii) a representation
letter, in the form as described by the Agreement, stating that the transferee
is not
A-7-4
an employee benefit or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any Plan.
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 Trustee.
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 Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
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 Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner
A-7-5
hereof for all purposes, and none of Depositor, the Trustee or any such agent
shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the Agreement continue beyond the expiration of 21 years
after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
A-7-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: April 29, 2003 JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
-------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of Bank One,
National Association, not in its
individual capacity but solely as
Trustee
By:
-------------------------------
Authorized Signatory
A-7-7
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 ______________________, the
assignee named above, or ________________________, as its agent.
X-0-0
XXXXXXX X-0
CLASS 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").
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 TRUSTEE NAMED 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 TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND
(B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUSTEE
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.
A-8-1
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON,
UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION
6.02(B) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE
THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO
THOSE UNDERTAKEN IN THE AGREEMENT.
Certificate No.__ Pass-Through Rate:0.00%
Class P
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of this Certificate as of the Cut-off Date:
April 1, 2003 $___________
First Distribution Date: Initial Certificate Principal Balance of this
May 25, 2003 Certificate as of the Cut-off Date:
$___________
Trustee: JPMorgan Chase Bank CUSIP: ___________
Final Scheduled Distribution Date:
--------------
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2003-A1
evidencing a fractional undivided interest in the distributions
allocable to the Class P Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") 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 NAAC
or the Trustee or any of their affiliates or any other person. None of NAAC, the
Trustee 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.
A-8-2
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 mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among NAAC, as depositor (the "Depositor"), the Seller, as seller,
Option One Mortgage Corporation, as servicer and JPMorgan Chase Bank, as trustee
(the "Trustee"), 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.
The Trustee 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 amount required to be distributed to the Holders of Certificates of the
same Class as this Certificate. The Final Scheduled Distribution Date is
_________________ and 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 Trustee
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 Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose 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.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit E and either F
or G, as applicable, and (ii) in all other cases, an Opinion of
A-8-3
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 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 nor the Trustee is obligated to register or qualify the Class of
Certificates specified on the face hereof under the 1933 Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of such Certificates without registration or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the Seller 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 Class P Certificate will be made unless
the Trustee has received either (i) an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee with respect to the
permissibility of such transfer under the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code
(the "Code") and stating, among other things, that the transferee's acquisition
of a Class P Certificate will not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
and will not subject the Trustee or the Depositor to any obligation in addition
to those expressly undertaken in the Pooling Agreement or (ii) a representation
letter, in the form as described by the Agreement, stating that the transferee
is not an employee benefit or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any Plan.
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 Trustee.
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 each Class 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
A-8-4
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 Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
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 Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee 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 Trustee or any such agent shall be affected
by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than the
percentage of the aggregate Stated Principal Balance specified in the Agreement
of the Mortgage Loans at the Cut-off Date. The exercise of such right will
effect the early retirement of the Certificates. In no event, however, will the
Trust Fund created by the Agreement continue beyond the expiration of 21 years
after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
A-8-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: April 29, 2003 JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
-------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of Bank One,
National Association, not in its
individual capacity but solely as
Trustee
By:
-------------------------------
Authorized Signatory
A-8-6
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 ______________________, the
assignee named above, or ________________________, as its agent.
A-8-7
EXHIBIT B
MORTGAGE LOAN SCHEDULE
The Preliminary and Final Mortgage Loan Schedules shall set
forth the following information with respect to each Mortgage Loan:
(i) the loan 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 MIN with respect to each Mortgage Loan;
(xii) the Loan Group;
(xiii) the applicable Servicer; and
(xiv) the applicable Custodian.
Such schedule also shall set forth for all of the Mortgage Loans, the total
number of Mortgage Loans, the total of each of the amounts described under (k)
and (n) above, the weighted average by principal balance as of the Cut-off Date
of each of the rates described under (e), (f) and (g) above, and the weighted
average remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
B-1
EXHIBIT C-1
FORM OF INITIAL CERTIFICATION
Nomura Asset Acceptance Corporation XX Xxxxxx Xxxxx Bank
2 World Financial Center, Building B 4 New York Plaza, 6th Floor
New York, New York 10281 Xxx Xxxx, Xxx Xxxx 00000
Attention: ITS Structured Finance Services,
Nomura Asset Acceptance Corp. 2003-A1
Re: Pooling and Servicing Agreement, dated as of April 1, 2003,
among Nomura Asset Acceptance Corporation, as depositor,
Nomura Credit & Capital, Inc., as seller, Option One Mortgage
Corporation, as servicer and JPMorgan Chase Bank, as trustee,
issuing Mortgage-pass Through Certificates, Series 2003-A1
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as otherwise
noted on the attached exception report, that as to each Mortgage Loan listed on
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed
on the attachment hereto) it has reviewed the Mortgage File and the Mortgage
Loan Schedule and has determined that: (i) all documents required to be included
in the Mortgage File pursuant to the Pooling and Servicing Agreement are in its
possession; (ii) such documents have been reviewed by it and appear regular on
their face, have, where applicable, been executed and relate to such Mortgage
Loan; and (iii) based on examination by it, and only as to such documents, the
information set forth in the Mortgage Loan Schedule as to Mortgagor Name,
original principal balance and loan number respecting such Mortgage Loan is
correct and accurately reflects the information in the Mortgage Loan File.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation that any documents specified in subclauses (iv) and (vi) of the
third paragraph of Section 2.01 should be included in any Mortgage File. The
undersigned makes no representations as to: (i) the validity, legality,
enforceability, recordability, sufficiency, due authorization or genuineness of
any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
JPMORGAN CHASE BANK, as Custodian
By:
-----------------------------
Name:
Title:
C-1-1
EXHIBIT C-2
FORM OF INTERIM CERTIFICATION
Nomura Asset Acceptance Corporation XX Xxxxxx Xxxxx Bank
2 World Financial Center, Building B 4 New York Plaza, 6th Floor
New York, New York 10281 Xxx Xxxx, Xxx Xxxx 00000
Attention: ITS Structured Finance Services,
Nomura Asset Acceptance Corp. 2003-A1
Re: Pooling and Servicing Agreement, dated as of April 1, 2003,
among Nomura Asset Acceptance Corporation, as depositor,
Nomura Credit & Capital, Inc., as seller, Option One Mortgage
Corporation, as servicer and JPMorgan Chase Bank, as trustee,
issuing Mortgage-pass Through Certificates, Series 2003-A1
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as otherwise
noted on the attached exception report, that as to each Mortgage Loan listed on
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed
on the attachment hereto) it has reviewed the Mortgage File and the Mortgage
Loan Schedule and has determined that: (i) all documents required to be included
in the Mortgage File pursuant to the Pooling and Servicing Agreement are in its
possession; (ii) such documents have been reviewed by it and appear regular on
their face, have, where applicable, been executed and relate to such Mortgage
Loan; and (iii) based on examination by it, and only as to such documents, the
information set forth in the Mortgage Loan Schedule as to Mortgagor Name,
original principal balance and loan number respecting such Mortgage Loan is
correct and accurately reflects the information in the Mortgage Loan File.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation that any documents specified in subclauses (iv) and (vi) of the
third paragraph of Section 2.01 should be included in any Mortgage File. The
undersigned makes no representations as to: (i) the validity, legality,
enforceability, recordabililty, sufficiency, due authorization or genuineness of
any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
JPMORGAN CHASE BANK, as Custodian
By:
-----------------------------
Name:
Title:
C-2-1
EXHIBIT C-3
FORM OF FINAL CERTIFICATION
Nomura Asset Acceptance Corporation XX Xxxxxx Xxxxx Bank
2 World Financial Center, Building B 4 New York Plaza, 6th Floor
New York, New York 10281 Xxx Xxxx, Xxx Xxxx 00000
Attention: ITS Structured Finance Services,
Nomura Asset Acceptance Corp. 2003-A1
Re: Pooling and Servicing Agreement, dated as of April 1, 2003,
among Nomura Asset Acceptance Corporation, as depositor,
Nomura Credit & Capital, Inc., as seller, Option One Mortgage
Corporation, as servicer and JPMorgan Chase Bank, as trustee,
Issuing Mortgage-pass Through Certificates, Series 2003-A1
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as otherwise
noted on the attached exception report, that as to each Mortgage Loan listed on
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed
on the attachment hereto) it has received the documents set forth in Section
2.01 and has determined that (i) all documents required to be included in the
Mortgage File pursuant to the Pooling and Servicing Agreement are in its
possession; (ii) such documents have been reviewed by it and appear regular on
their face, have, where applicable, been executed and relate to such Mortgage
Loan; and (iii) based on examination by it, and only as to such documents, the
information set forth in the Mortgage Loan Schedule as to Mortgagor name,
original principal balance and loan number respecting such Mortgage Loan is
correct and accurately reflects the information in the Mortgage Loan File.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation that any documents specified in subclauses (iv) and (vi) of the
third paragraph of Section 2.01 should be included in any Mortgage File. The
undersigned makes no representations as to: (i) the validity, legality,
enforceability, recordability, sufficiency, due authorization or genuineness of
any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
JPMORGAN CHASE BANK, as Custodian
By:
------------------------------
Name:
Title:
C-3-1
EXHIBIT D
FORM OF TRANSFER AFFIDAVIT
Affidavit pursuant to Section
860E(e)(4) of the Internal
Revenue Code of 1986, as
amended, and for other
purposes
STATE OF )
)ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he/she is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of _____] [the United States], on behalf of which
he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" as
defined in Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), and will not be a disqualified organization as of [Closing Date]
[date of purchase]; (ii) it is not acquiring the Nomura Asset Acceptance
Corporation Alternative Loan Trust, Mortgage Pass Through Certificates, Series
2003-A1, Class R Certificates (the "Residual Certificates") for the account of a
disqualified organization; (iii) it consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by Nomura Asset Acceptance
Corporation (upon advice of counsel) to constitute a reasonable arrangement to
ensure that the Residual Certificates will not be owned directly or indirectly
by a disqualified organization; and (iv) it will not transfer such Residual
Certificates unless (a) it has received from the transferee an affidavit in
substantially the same form as this affidavit containing these same four
representations and (b) as of the time of the transfer, it does not have actual
knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a citizen or resident
of the United States, (ii) a corporation or partnership (including an entity
treated as a corporation or partnership for federal income tax purposes) created
or organized in, or under the laws of, the United States or any state thereof or
the District of Columbia (except, in the case of a partnership, to the extent
provided in regulations), provided that no partnership or other entity treated
as a partnership for United States federal income tax purposes shall be treated
as a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are United States Persons, (iii) an
estate whose income is subject to United States federal income tax regardless of
its source, or (iv) a trust other than a "foreign trust," as defined in Section
7701 (a)(31) of the Code.
4. That the Investor's taxpayer identification number is
______________________.
D-1
5. That no purpose of the acquisition of the Residual Certificates is
to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the Residual
Certificates, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificates as they become due.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] this ____ day of _________, 20__.
[NAME OF INVESTOR]
By:
--------------------------------------
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt of
distributions]
Address of Investor for receipt of tax
information:
D-2
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___.
D-3
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE
______________,200___
Nomura Asset Acceptance Corporation
2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
Institutional Trust Services
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Nomura Asset Acceptance Corporation Alternative Loan Trust, Series
2003-A1
Re: Nomura Asset Acceptance Corporation
Mortgage Pass-Through Certificates, Series 2003-A1, Class
---------------------------------------------------------
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________
(the "Purchaser") of $_________ Initial Certificate Principal Balance of
Asset-Backed Certificates, Series 2002-AC5, Class _____ (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of April 1, 2003 among Nomura Asset Acceptance
Corporation, as depositor (the "Depositor"), Nomura Credit & Capital, Inc., as
seller, Option One Mortgage Corporation, as servicer, and JPMorgan Chase Bank,
as trustee (the "Trustee"). The Seller hereby certifies, represents and warrants
to, a covenants with, the Depositor and the Trustee that:
Neither the Seller 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 Seller will
E-1
not act in any manner set forth in the foregoing sentence with respect to any
Certificate. The Seller 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,
----------------------------------
(Seller)
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
E-2
EXHIBIT F
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
___________,200__
Nomura Asset Acceptance Corporation
2 World Financial Center
New York, New York 10281
JPMorgan Chase Bank
Institutional Trust Services
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Nomura Asset Acceptance Corporation, Alternative Loan Trust, 2003-A1
Re: Nomura Asset Acceptance Corporation, Alternative Loan Trust,
Mortgage Pass-Through Certificates, Series 2003-A1
Ladies and Gentlemen:
_______________ (the "Purchaser") intends to purchase from ____________
(the "Seller") $_________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 2003-A1, Class _____ (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of April 1, 2003 among Nomura Asset Acceptance
Corporation, as depositor (the "Depositor"), Nomura Credit & Capital, Inc., as
seller, Option One Mortgage Corporation, as servicer and XX Xxxxxx Xxxxx Bank,
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 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
F-1
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 Seller
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 Seller 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:
--------------------------
F-2
EXHIBIT G
FORM OF RULE 144A INVESTMENT LETTER
[Date]
Nomura Credit & Capital, Inc.
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Nomura Asset Acceptance Corporation
2 World Financial Center
New York, New York 10281
JPMorgan Chase Bank
Institutional Trust Services
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Nomura Asset Acceptance Corporation, Alternative Loan Trust, Mortgage
Pass-Through Certificates, Series 2003-A1 (the "Certificates"),
including the Class Certificates (the "Privately Offered Certificates")
-----------------------------------------------------------------------
Dear Ladies and Gentlemen:
In connection with our purchase of Privately Offered Certificates, we
confirm that:
(i) we understand that the Privately Offered 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 Privately Offered 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 Privately Offered Certificates has been made
available to us;
(iii) we are able to bear the economic risk of investment in
Privately Offered 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;
(iv) we are acquiring Privately Offered 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 Privately Offered Certificates;
G-1
(v) we agree the Privately Offered 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 Privately
Offered Certificates (such disposition or exchange not
being currently foreseen or contemplated), we will not
transfer or exchange any of the Privately Offered
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 Trustee) 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 Privately Offered Certificate is not
registered under the Act (as to which we acknowledge
you have no obligation), the Privately Offered
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 JPMorgan
Chase Bank (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, 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 Privately Offered
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) are providing a
representation or an opinion of counsel to the effect
that the proposed
G-2
transfer and holding of a Privately Offered Certificate
and the servicing, management and operation of the
Trust and its assets: (I) will not result in any
prohibited transaction which is not covered under an
individual or class prohibited transaction exemption,
including, but not limited to, Prohibited Transaction
Exemption ("PTE") 84-14, XXX 00-00, XXX 00-0, XXX
00-00, XXX 00-00 or Section 401(c) of ERISA and the
regulations promulgated thereunder and (II) will not
give rise to any additional fiduciary duties on the
part of the Seller, the Master Servicer or the Trustee.
(ix) We understand that each of the Class ___ Certificates
bears, and will continue to bear, a legend to
substantiate 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
TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED
IN THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF
SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUSTEE 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. THIS CERTIFICATE MAY NOT BE ACQUIRED
X-0
XXXXXXXX XX XXXXXXXXXX XX, XX XX 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,
UNLESS THE PROPOSED TRANSFER AND HOLDING OF A
CERTIFICATE AND THE SERVICING, MANAGEMENT AND OPERATION
OF THE TRUST AND ITS ASSETS: (1) WILL NOT RESULT IN ANY
PROHIBITED TRANSACTION WHICH IS NOT COVERED UNDER AN
INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION,
INCLUDING, BUT NOT LIMITED TO, PROHIBITED TRANSACTION
EXEMPTION ("PTE") 84-14, XXX 00-00, XXX 00-0, XXX
00-00, XXX 96-23 OR SECTION 401(C) OF ERISA AND THE
REGULATIONS TO BE PROMULGATED THEREUNDER AND (II) WILL
NOT GIVE RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE
PART OF THE SELLER, THE MASTER SERVICER OR THE TRUSTEE,
WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A
BOOK-ENTRY CERTIFICATE OR A GLOBAL CERTIFICATE AND WILL
BE EVIDENCED BY A REPRESENTATION OR AN OPINION OF
COUNSEL TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A
PRIVATE CERTIFICATE."
"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 April 1, 2003, between
Nomura Asset Acceptance Corporation, as depositor, Nomura Credit & Capital,
Inc., as seller, Option One Mortgage Corporation, as servicer and JPMorgan Chase
Bank, as 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___.
G-4
Very truly yours,
[PURCHASER]
By:
-------------------------------------
(Authorized Officer)
[By:
-----------------------------
Attorney-in-fact]
G-5
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]
G-6
EXHIBIT H
REQUEST FOR RELEASE OF DOCUMENTS
To: JPMorgan Chase Bank
Institutional Trust Services
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
RE: Pooling and Servicing Agreement dated as of April 1, 2003, among Nomura
Asset Acceptance Corporation, as Depositor, Nomura Credit & Capital, Inc.,
as seller Option One MORTGAGE CORPORATION, AS SERVICER, AND JPMORGAN CHASE
BANK, AS TRUSTEE
In connection with the administration of the Mortgage Loans held by you
pursuant to the above-captioned Pooling and Servicing Agreement, we request the
release, and hereby acknowledge receipt, of the Mortgage File for the Mortgage
Loan described below, for the reason indicated.
MORTGAGE LOAN NUMBER:
MORTGAGOR NAME, ADDRESS & ZIP CODE:
REASON FOR REQUESTING DOCUMENTS (CHECK ONE):
_____ 1. Mortgage Paid in Full and proceeds have been deposited into the
Custodial Account
_____ 2. Foreclosure
_____ 3. Substitution
_____ 4. Other Liquidation
____ 5. Nonliquidation Reason:
---------------------
_____ 6. California Mortgage Loan paid in full
By:
--------------------------------
(authorized signer)
Issuer:
---------------------------
Address:
--------------------------
Date:
------------------------------
H-1
K-2
EXHIBIT I
DTC Letter of Representations
[provided upon request]
I-1
EXHIBIT J
Schedule of Mortgage Loans with Lost Notes
[None]
J-1
EXHIBIT K
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from
time to time, the "Agreement'), dated as of April 29, 2003, by and among US
BANK, NATIONAL ASSOCIATION as custodian (the "Custodian"), JPMORGAN CHASE BANK,
as trustee (the "Trustee"), NOMURA ASSET ACCEPTANCE CORPORATION, as depositor
(the "Depositor"), NOMURA CREDIT & CAPITAL, INC., as seller (the "Seller") and
OPTION ONE MORTGAGE CORPORATION, as servicer (the "Servicer").
WITNESSETH THAT:
WHEREAS, the Depositor, the Servicer, the Trustee and Nomura
Credit & Capital, Inc. (the "Seller") have entered into a Pooling and Servicing
Agreement, dated as of April 1, 2003, relating to the issuance of Nomura Asset
Acceptance Corporation, Alternative Loan Trust Mortgage Pass-Through
Certificates, Series 2003-A1 (as amended from time to time, the "Pooling and
Servicing Agreement,"); and
WHEREAS, the Custodian has agreed to act as agent for the
Trustee for the purposes of receiving and holding certain documents and other
instruments delivered by the Depositor, the Seller or the Servicer under the
Pooling and Servicing Agreement and the Servicers under their respective
Servicing Agreements, all upon the terms and conditions and subject to the
limitations hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the Trustee, the
Depositor, the Servicer and the Custodian hereby agree as follows:
ARTICLE I.
DEFINITIONS
Capitalized terms used in this Agreement and not defined
herein shall have the meanings assigned in the Pooling and Servicing Agreement,
unless otherwise required by the context herein.
ARTICLE II.
CUSTODY OF MORTGAGE DOCUMENTS
Section 2.1. CUSTODIAN TO ACT AS AGENT: ACCEPTANCE OF MORTGAGE FILES.
The Custodian, as the duly appointed agent of the Trustee for these purposes,
acknowledges (subject to any exceptions noted in the Initial Certification
referred to in Section 2.3(a) receipt of the Mortgage Files relating to the
Mortgage Loans identified on the schedule attached hereto (the "Mortgage
K-1
Files") and declares that it holds and will hold such Mortgage Files as agent
for the Trustee, in trust, for the use and benefit of all present and future
Certificateholders.
Section 2.2. RECORDATION OF ASSIGNMENTS. If any Mortgage File includes
one or more assignments of Mortgage that have not been recorded pursuant to the
provisions of Section 2.01 of the Pooling and Servicing Agreement and the
related Mortgage Loan is not a MOM Loan or the related Mortgaged Properties are
located in jurisdictions specifically excluded by the Opinion of Counsel
delivered to the Trustee pursuant to Section 2.01 of the Pooling and Servicing
Agreement, each such assignment shall be delivered by the Custodian to the
Seller for the purpose of recording it in the appropriate public office for real
property records, and the Seller, at no expense to the Custodian, shall promptly
cause to be recorded in the appropriate public office for real property records
each such assignment of Mortgage and, upon receipt thereof from such public
office, shall return each such assignment of Mortgage to the Custodian.
Section 2.3. REVIEW OF MORTGAGE FILES.
(a) On or prior to the Closing Date, in accordance with Section
2.02 of the Pooling and Servicing Agreement, the Custodian shall deliver to the
Seller and the Trustee an Initial Certification in the form annexed hereto as
Exhibit One evidencing receipt (subject to any exceptions noted therein) of a
Mortgage File for each of the Mortgage Loans listed on the Schedule attached
hereto (the "Mortgage Loan Schedule").
(b) Within 90 days of the Closing Date, the Custodian agrees,
for the benefit of Certificateholders, to review, in accordance with the
provisions of Section 2.02 of the Pooling and Servicing Agreement, each such
document, and shall deliver to the Seller and the Trustee an Interim
Certification in the form annexed hereto as Exhibit Two to the effect that all
such documents have been executed and received and that such documents relate to
the Mortgage Loans identified on the Mortgage Loan Schedule, except for any
exceptions listed on Schedule A attached to such Interim Certification. The
Custodian shall be under no duty or obligation to inspect, review or examine
said documents, instruments, certificates or other papers to determine that the
same are genuine, enforceable, or appropriate for the represented purpose or
that they have actually been recorded or that they are other than what they
purport to be on their face.
(c) Not later than 180 days after the Closing Date, the
Custodian shall review the Mortgage Files as provided in Section 2.02 of the
Pooling and Servicing Agreement and deliver to the Seller and the Trustee a
Final Certification in the form annexed hereto as Exhibit Three evidencing the
completeness of the Mortgage Files.
(d) In reviewing the Mortgage Files as provided herein and in
the Pooling and Servicing Agreement, the Custodian shall make no representation
as to and shall not be responsible to verify (i) the validity, legality,
enforceability, due authorization, recordability, sufficiency or genuineness of
any of the documents included in any Mortgage File or (ii) the collectibility,
insurability, effectiveness or suitability of any of the documents in any
Mortgage File.
K-2
Upon receipt of written request from the Trustee, the Custodian shall
as soon as practicable supply the Trustee with a list of all of the documents
relating to the Mortgage Loans missing from the Mortgage Files.
Section 2.4. CUSTODIAN TO COOPERATE: RELEASE OF MORTGAGE FILES. Upon
receipt of written notice from the Trustee that the Seller has repurchased a
Mortgage Loan pursuant to Article II of the Pooling and Servicing Agreement, and
a request for release (a "Request for Release") confirming that the purchase
price therefore has been deposited in the Custodial Account or the Distribution
Account, then the Custodian agrees to promptly release to the Seller the related
Mortgage File.
Upon the Custodian's receipt of a Request for Release
substantially in the form of Exhibit H to the Pooling and Servicing Agreement
signed by a Servicing Officer of the Servicer, stating that it has received
payment in full of a Mortgage Loan or that payment in full will be escrowed in a
manner customary for such purposes, the Custodian agrees promptly to release to
the Servicer the related Mortgage File. The Depositor shall deliver to the
Custodian and the Custodian agrees to review in accordance with the provisions
of their Agreement the Mortgage Note and other documents constituting the
Mortgage File with respect to any Replacement Mortgage Loan.
From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Insurance Policy, the Servicer shall deliver to the Custodian a Request for
Release signed by a Servicing Officer requesting that possession of all of the
Mortgage File be released to the Servicer, and certifying as to the reason for
such release and that such release will not invalidate any insurance coverage
provided in respect of the Mortgage Loan under any of the Insurance Policies.
Upon receipt of the foregoing, the Custodian shall deliver the Mortgage File to
the Servicer. The Servicer shall cause each Mortgage File or any document
therein so released to be returned to the Custodian when the need therefore by
the Servicer no longer exists, unless (i) the Mortgage Loan has been liquidated
and the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in the Custodial Account or the Distribution Account or (ii) the Mortgage File
or such document has been delivered to an attorney, or to a public trustee or
other public official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the Mortgaged Property
either judicially or non-judicially, and the Servicer has delivered to the
Custodian a certificate of a Servicing Officer certifying as to the name and
address of the Person to which such Mortgage File or such document was delivered
and the purpose or purposes of such delivery.
At any time that the Servicer is required to deliver to the
Custodian a Request for Release, the Servicer shall deliver two copies of the
Request for Release if delivered in hard copy or the Servicer may furnish such
Request for Release electronically to the Custodian, in which event the
Servicing Officer transmitting the same shall be deemed to have signed the
Request for Release. In connection with any Request for Release of a Mortgage
File because of a repurchase of a Mortgage Loan, such Request for Release shall
be accompanied by an assignment of mortgage, without recourse, representation or
warranty from the Trustee to the Seller (unless
K-3
such Mortgage Loan is a MOM Loan) and the related Mortgage Note shall be
endorsed without recourse, representation or warranty by the Trustee and be
returned to the Seller. In connection with any Request for Release of a Mortgage
File because of the payment in full of a Mortgage Loan, such Request for Release
shall be accompanied by a certificate of satisfaction or other similar
instrument to be executed by or on behalf of the Trustee and returned to the
Servicer.
Section 2.5. ASSUMPTION AGREEMENTS. In the event that any assumption
agreement, substitution of liability agreement or sale of servicing agreement is
entered into with respect to any Mortgage Loan subject to this Agreement in
accordance with the terms and provisions of the Pooling and Servicing Agreement,
the Servicer shall notify the Custodian that such assumption or substitution
agreement has been completed by forwarding to the Custodian the original of such
assumption or substitution agreement, which shall be added to the related
Mortgage File and, for all purposes, shall be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting
parts thereof.
ARTICLE III.
CONCERNING THE CUSTODIAN
Section 3.1. CUSTODIAN A BAILEE AND AGENT OF THE TRUSTEE. With respect
to each Mortgage Note, Mortgage and other documents constituting each Mortgage
File which are delivered to the Custodian, the Custodian is exclusively the
bailee and agent of the Trustee and has no instructions to hold any Mortgage
Note or Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement. Except upon compliance with the
provisions of this Agreement, no Mortgage Note, Mortgage or Mortgage File shall
be delivered by the Custodian to the Depositor, the Seller or the Servicer or
otherwise released from the possession of the Custodian.
Section 3.2. RESERVED.
Section 3.3. CUSTODIAN MAY OWN CERTIFICATES. The Custodian in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Custodian.
Section 3.4. SERVICER TO PAY CUSTODIAN'S FEES AND EXPENSES. The
Servicer covenants and agrees to pay to the Custodian from time to time, and the
Custodian shall be entitled to, reasonable compensation for all services
rendered by it in the exercise and performance of any of the powers and duties
hereunder of the Custodian, and the Servicer will pay or reimburse the Custodian
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Custodian in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ),
except any such expense, disbursement or advance as may arise from its
negligence or bad faith or to the extent that such cost or expense is
indemnified by the Depositor pursuant to the Pooling and Servicing Agreement.
K-4
Section 3.5. CUSTODIAN MAY RESIGN; TRUSTEE MAY REMOVE CUSTODIAN. The
Custodian may resign from the obligations and duties hereby imposed upon it as
such obligations and duties relate to its acting as Custodian of the Mortgage
Loans. Upon receiving such notice of resignation, the Trustee shall either take
custody of the Mortgage Files itself and give prompt notice thereof to the
Depositor, the Servicer and the Custodian, or promptly appoint a successor
Custodian by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Custodian and one copy to the successor
Custodian. If the Trustee shall not have taken custody of the Mortgage Files and
no successor Custodian shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Custodian may petition any court of competent jurisdiction for the
appointment of a successor Custodian.
The Trustee may remove the Custodian at any time upon 60 days
prior written notice to Custodian. In such event, the Trustee shall appoint, or
petition a court of competent jurisdiction to appoint, a successor Custodian
hereunder.
Any successor Custodian shall (a) be a depository institution
or trust company subject to supervision by federal or state authority, (b) have
a combined capital and surplus of at least $10,000,000, (c) be qualified to do
business in any jurisdiction in which it holds a Custodian's Mortgage File and
(d) be qualified to act as a custodian for Xxxxxx Xxx, the Federal Home Loan
Mortgage Corporation and the Government National Mortgage Association.
Any resignation or removal of the Custodian and appointment of
a successor Custodian pursuant to any of the provisions of this Section 3.5
shall become effective upon acceptance of appointment by the successor
Custodian. The Trustee shall give prompt notice to the Depositor and the
Servicer of the appointment of any successor Custodian. No successor Custodian
shall be appointed by the Trustee without the prior approval of the Depositor
and the Servicer.
Section 3.6. MERGER OR CONSOLIDATION OF CUSTODIAN. Any Person into
which the Custodian may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 3.7. REPRESENTATIONS OF THE CUSTODIAN. The Custodian hereby
represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $15,000,000 and is qualified to do business in the jurisdictions in
which it will hold any Mortgage File.
ARTICLE IV.
MISCELLANEOUS PROVISIONS
Section 4.1. NOTICES. All notices, requests, consents and demands and
other communications required under this Agreement or pursuant to any other
instrument or document
K-5
delivered hereunder shall be in writing and, unless otherwise specifically
provided, may be delivered personally, by telegram or telex, or by registered or
certified mail, postage prepaid, return receipt requested, at the addresses
specified on the signature page hereof (unless changed by the particular party
whose address is stated herein by similar notice in writing), in which case the
notice will be deemed delivered when received.
Section 4.2. AMENDMENTS. No modification or amendment of or supplement
to this Agreement shall be valid or effective unless the same is in writing and
signed by all parties hereto. The Trustee shall give prompt notice to the
Custodian of any amendment or supplement to the Pooling and Servicing Agreement
and furnish the Custodian with written copies thereof.
Section 4.3. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.4. RECORDATION OF AGREEMENT. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Depositor and at the Trust's expense on
direction by the Trustee, but only upon direction accompanied by an Opinion of
Counsel reasonably satisfactory to the Depositor to the effect that the failure
to effect such recordation is likely to materially and adversely affect the
interests of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 4.5. 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.
IN WITNESS WHEREOF, this Agreement is executed as of the date
first above written.
K-6
Address: JPMORGAN CHASE BANK., as Trustee
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 By:_______________________________
Attention: Name:
Telecopy: Title:
Confirmation:
Address: NOMURA ASSET ACCEPTANCE
CORPORATION, as Depositor
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000 By:_______________________________
Name:
Title:
Address: NOMURA CREDIT & CAPITAL, INC., as
Seller
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000 By:_______________________________
Name:
Title:
US BANK, NATIONAL ASSOCIATION, as
Address: Custodian
By:_______________________________
0000 Xxxxxx Xx., 00xx Xxxxx Name:
Xxxxxxx, Xxxxx 00000 Title:
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ______ day of April 2003 before me, a notary public in
and for said State, personally appeared _______________, known to me to be a
_________________of JPMorgan Chase Bank, a New York State banking corporation
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
K-7
------------------------------
Notary Public
[SEAL]
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ______ day of April 2003 before me, a notary public in
and for said State, personally appeared ________________, known to me to be a
_____________ of Nomura Asset Acceptance Corporation, that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ______ day of April 2003 before me, a notary public in
and for said State, personally appeared ________________, known to me to be a
__________________ of Nomura Credit & Capital, Inc., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
K-8
[Notarial Seal]
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ______ day of April 2003 before me, a notary public in
and for said State, personally appeared ____________, known to me to be a of US
Bank, National Association, one of the national associations that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said national association, and acknowledged to me that such national
association 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]
K-9
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
April 29, 2003
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Nomura Credit & Capital, Inc.
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series
2003-A1
Re: Custodial Agreement, dated as of April 29, 2003, by and
among Option One Mortgage Corporation, JPMorgan
Chase Bank, Nomura Asset Acceptance Corporation and
Nomura Credit & Capital, Inc., relating to Nomura Asset
Acceptance Corporation, Alternative Loan Trust, Mortgage
Pass-Through Certificates, Series 2003-A1
-----------------------------------------
Ladies and Gentlemen:
In accordance with Section 3 of the above-captioned Custodial
Agreement, and subject to Section 2.02 of the Pooling and Servicing Agreement,
the undersigned, as Custodian, hereby certifies that it has received a Mortgage
File (which contains an original Mortgage Note or lost note affidavit) to the
extent required in Section 2.01 of the Pooling and Servicing Agreement with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule, with any
exceptions listed on Schedule A attached hereto.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
US BANK, NATIONAL ASSOCIATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
K-10
EXHIBIT TWO
FORM OF CUSTODIAN INTERIM CERTIFICATION
[DATE]
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Nomura Credit & Capital, Inc.
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series
2003-A1
Re: Custodial Agreement, dated as of April 29, 2003, by and
among Option One Mortgage Corporation, JPMorgan
Chase Bank, Nomura Asset Acceptance Corporation and
Nomura Credit & Capital, Inc., relating to Nomura Asset
Acceptance Corporation, Alternative Loan Trust, Mortgage
Pass-Through Certificates, Series 2003-A1
-----------------------------------------
Ladies and Gentlemen:
In accordance with Section 3 of the above-captioned Custodial
Agreement, the undersigned, as Custodian, hereby certifies that it has received
a Mortgage File to the extent required pursuant to Section 2.01 of the Pooling
and Servicing Agreement with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, and it has reviewed the Mortgage File and the Mortgage
Loan Schedule and has determined that: all required documents have been executed
and received and that such documents related to the Mortgage Loans identified on
the Mortgage Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
US BANK, NATIONAL ASSOCIATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
K-11
EXHIBIT THREE
FORM OF CUSTODIAN FINAL CERTIFICATION
[DATE]
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Nomura Credit & Capital, Inc.
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series
2003-A1
Re: Custodial Agreement, dated as of April 29, 2003, by and
among Option One Mortgage Corporation, JPMorgan
Chase Bank, Nomura Asset Acceptance Corporation and
Nomura Credit & Capital, Inc., relating to Nomura Asset
Acceptance Corporation, Alternative Loan Trust, Mortgage
Pass-Through Certificates, Series 2003-A1
-----------------------------------------
Ladies and Gentlemen:
In accordance with Section 3 of the above-captioned Custodial
Agreement, the undersigned, as Custodian, hereby certifies that it has received
a Mortgage File with respect to each Mortgage Loan listed in the Mortgage Loan
Schedule containing with respect to each such Mortgage Loan:
(i) the original Mortgage Note, including any riders thereto, endorsed
without recourse to the order of "JPMorgan Chase Bank, as Trustee for
certificateholders of Nomura Asset Acceptance Corporation, Mortgage
Pass Through Certificates, Series 2003-A1" and showing to the extent
available to the Seller an unbroken chain of endorsements from the
original payee thereof to the Person endorsing it to the Trustee,
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM
Loan, noting the presence of the MIN and language indicating that such
Mortgage Loan is a MOM Loan, which shall have been recorded (or if the
original is not available, a copy), with evidence
K-12
of such recording indicated thereon (or if permitted by Section 2 of
the Custodial Agreement, shall be in recordable form),
(iii) unless the Mortgage Loan is a MOM Loan, the assignment (either an
original or a copy, which may be in the form of a blanket assignment if
permitted in the jurisdiction in which the Mortgaged Property is
located) to the Trustee of the Mortgage with respect to each Mortgage
Loan in the name of "JPMorgan Chase Bank, as Trustee for
certificateholders of Nomura Asset Acceptance Corporation, Mortgage
Pass-Through Certificates, Series 2003-A1" which shall have been
recorded (or if permitted by Section 2 of the Custodial Agreement,
shall be in recordable form);
(iv) an original or a copy of all intervening assignments of the
Mortgage, if any, with evidence of recording thereon,
(v) the original policy of title insurance or mortgagee's certificate
of title insurance or commitment or binder for title insurance, if
available, or a copy thereof, or, in the event that such original title
insurance policy is unavailable, a photocopy thereof, or in lieu
thereof, a current lien search on the related Mortgaged Property; and
(vi) originals or copies of all available assumption,
modification or substitution agreements, if any.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
US BANK, NATIONAL ASSOCIATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
K-13
EXHIBIT L
FORM OF CERTIFICATION TO BE PROVIDED TO
THE DEPOSITOR AND THE TRUSTEE BY THE SERVICER
Re: Pooling and Servicing Agreement, dated as of April 1,
2003, (the "Pooling and Servicing Agreement"), among
Nomura Asset Acceptance Corporation, as depositor, Nomura
Credit & Capital, Inc., as seller, Option One Mortgage
Corporation, as Servicer and XX Xxxxxx Xxxxx Bank, as
trustee, issuing Mortgage-Pass Through Certificates,
series 2003-A1
I, [identify the certifying individual], certify to the
Depositor and the Trustee, and their officers, directors and affiliates, and
with the knowledge and intent that they will reply upon this certification,
that:
1. I am responsible for reviewing the activities performed by
the Servicer under the Pooling and Servicing and based upon my knowledge and the
annual compliance review required under the Pooling and Servicing Agreement, and
except as disclosed in the annual compliance statement required to be delivered
to the Trustee in accordance with the terms of the Pooling and Servicing
Agreement (which has been so delivered to the Trustee), the Servicer has
fulfilled its obligations under the Pooling and Servicing Agreement. Based upon
my knowledge, the annual statement of compliance delivered by the Servicer under
the Pooling and Servicing Agreement does not contain any untrue statement of
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statement was made, not
misleading; and
2. Based upon my knowledge, all significant deficiencies
relating to the Servicer's compliance with the minimum servicing standards for
purposes of the report provided by an independent public accountant, after
conducting a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar procedure, as set forth in the Pooling
and Servicing Agreement, have been disclosed to such accountant and are included
in such reports.
Date:
------------------------
------------------------------
[Signature]
[Title]
L-1
EXHIBIT M
FORM OF CERTIFICATION TO BE PROVIDED TO
THE DEPOSITOR BY THE TRUSTEE
[DEPOSITOR/ISSUER NAME]
Re: Nomura Asset Acceptance Corporation Mortgage Pass-Through
Certificates, Series 2003-A1
Reference is made to the Pooling and Servicing Agreement,
dated as of April 1, 2003 (the "Pooling and Servicing Agreement"), by and among
Nomura Asset Acceptance Corporation, as depositor (the "Depositor"), Nomura
Credit & Capital, Inc., as seller (the "Seller"), Option One Mortgage
Corporation, as servicer (the "Servicer"), and JPMorgan Chase Bank as trustee
(the "Trustee"). The Trustee, hereby certifies to the Depositor, and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
(i) The Trustee has reviewed the annual report on Form 10-K for the
fiscal year [____], and all reports on Form 8-K containing distribution
reports filed in respect of periods included in the year covered by
that annual report, relating to the above-referenced trust;
(ii) Based solely upon the information provided to us by the Servicer,
the information set forth in the reports referenced in (i) above does
not contain any untrue statement of material fact; and
(iii) Based on my knowledge, the distribution information required to
be provided by the Trustee under the Pooling and Servicing Agreement is
included in these reports.
JPMorgan Chase Bank, as Trustee
Date:
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
M-1
